U.S. Chief Justice John Roberts Jr. Photo: Diego M. Radzinschi / ALM

If there was any doubt that Chief Justice John Roberts Jr. is the pivotal vote on the U.S. Supreme Court, he erased it Thursday, the last sitting of the court's term.

In Rucho v. Common Cause, Roberts held fast to his longstanding position that refereeing disputes over partisan gerrymandering is not the business of federal courts. It was a 5-4 decision that reflected his view that the Supreme Court has “no commission to allocate political power.”

In Department of Commerce v. New York, Roberts was also, in a sense, trying to keep the court out of politics by sending the issue of adding a citizenship question to the U.S. Census back to lower courts. The four liberal justices joined Roberts in viewing the rationale behind the action as “contrived.”

Perhaps disturbed by recent reports that adding the question was aimed at undercounting minorities, Roberts may not have wanted the public to think he was oblivious to the evidence and rubber-stamping the Trump administration's wishes. Thursday's ruling returns the case to a New York federal trial judge, Jesse Furman, for further review.

“Our review is deferential, but we are 'not required to exhibit a naiveté from which ordinary citizens are free,'” Roberts wrote in the census ruling, using a 1977 quote from his mentor, Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit.

Almost immediately after the decision came down, Roberts caught sharp criticism from conservatives offended that he would second-guess the administration's reasoning.

Matt Schlapp, chairman of the American Conservative Union, tweeted, “I'm for impeaching the Chief Justice for lying to all of us about his support of the Constitution. He is responsible for Robertscare and now he is angling for vast numbers of illegal residents to help Dems hold Congress.”

“Whatever Roberts' motives might be … the census decision will surely deepen the impression that Roberts is the new Justice Kennedy, rather than the reliable fifth conservative vote that liberals feared and conservatives hoped for,” Curt Levey of the conservative Committee for Justice said. “Roberts disappointed conservatives today—to a degree not seen since he saved ObamaCare in 2012.”

Likening Roberts to the retired Justice Anthony Kennedy bolsters the notion that the chief justice is the pivotal vote, as Kennedy was.

“It was always clear once Justice Kennedy resigned that this was going to be the chief justice's court,” said Hogan Lovells partner Neal Katyal, who participated in a brief against the census question. “He cares so much about the institution of the court, so today's decision in the census case was not surprising, when faced with the kind of bogus explanations that Judge Furman demolished.”

Roberts' conservatives colleagues, including Justice Clarence Thomas, used soaring language to criticize what the court had done.

“The court's holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law,” Thomas wrote.

In addition to the census ruling Thursday, Roberts in February sided with the court's liberals in halting implementation of a restrictive Louisiana abortion law in the case June Medical Services v. Gee.

In a July 2018 speech Roberts said, “I feel some obligation to be something of an honest broker among my colleagues and won't necessarily go out of my way to pick fights,” and instead “would sort of sublimate [my] views.”

But in the census case Wednesday, that obligation apparently took a back seat to his feeling that the court should not be suckered, whether or not a fight ensued.

“We cannot ignore the disconnect between the decision made and the explanation given,” Roberts wrote. “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Read more:

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