In Wednesday’s decision in Williams-Yulee v. Florida Bar, Roberts surprised Court watchers when he joined the Court’s more liberal members to hold that the First Amendment permits Florida to ban judicial candidates from personally soliciting campaign funds. Roberts wrote for the Court that “[a] State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.” This was a big deal, and a relative bombshell by the Chief Justice. In the first decade of the Roberts Court, almost every term has had a significant decision sharply limiting campaign finance legislation, and Roberts has been in the majority in all of them. Last year, in McCutcheon v. FEC, he wrote the opinion striking down federal limits on aggregate campaign contributions, stating that the $123,000 limit per two-year election cycle “seriously restrict[s] participation in the democratic process” and thus conflicted with the “First Amendment right of citizens to choose who shall govern them.”
And last week, in Rodriguez v. United States, Roberts joined with the Court’s more liberal members and Justice Antonin Scalia in an important Fourth Amendment case, holding that the police may not extend a traffic stop to conduct a dog sniff absent independent reasonable suspicion. This isn’t the first time Roberts has cast a vote for more robust Fourth Amendment protections—last term, he wrote a significant opinion that generally prohibits warrantless cell phone searches following arrest—but there was little reason to expect his vote here. By my count, Roberts has cast his vote for the government in just under 85 percent of the Fourth Amendment cases the Court’s decided during his tenure.
Earlier this term, Roberts offered another surprising opinion when he, alone among the conservatives on the Court, joined an opinion with the Court’s more liberal justices that provided employment protections to pregnant workers.