John Roberts’s lack of courage is damaging the Supreme Court

The chief is the opposite of Anthony Kennedy, whose sin was the hubris to maximize the power of the federal courts and his own votes in nearly every case. Roberts remains what he was before his appointment, a conventional conservative legal theorist who believes in many of the doctrines and judicial philosophies one would hear at any Federalist Society gathering.

But courage is lacking. Over and over again, Roberts has failed to follow through on the rule of law. His defenders point to his big-picture vision of judicial modesty and incrementalism: that conservatives should avoid big, wrenching moves, and build small victories in doctrine today that will accumulate to larger ones tomorrow. But in law, as in politics, tomorrow never comes without courage today. Worse, Roberts has on occasion written or joined opinions in big cases that forced large changes (as in the Bostock decision on Title VII) or did violence to doctrine (as in the King v. Burwell decision on Obamacare exchanges) in order to reach results that momentarily appeased the Left. It is all too apparent that Roberts can be cowed by the Democrats’ frequent and noisy threats to pack the courts or otherwise poison their credibility and legitimacy with the public. By caving to such threats, he only invites more of them.

Worse, a movement is beginning to grow among social conservatives to give up on the entire project of stocking the courts with Federalist Society–style originalists and textualists, on the theory that they will simply fold in a tight spot. Roberts is Exhibit A. Senator Josh Hawley issued a shot across the bow a few days ago on this theme regarding Bostock. These voices on the right are arguing openly for a more results-driven jurisprudence — a project that would do violence to the things Roberts cherishes, and would also inevitably be a fight the Right could only lose. Failures of judicial courage can also dispirit conservative voters, as happened in 1992 after Casey. Why labor in the vineyards of politics to appoint judges who know the right thing to do but lack the strength of character to do it?