The Roberts Court before and after 2020—how a jurisprudence of "tradition" remapped power, rights, and the administrative state
By a regulated optimist who grades in pencil, votes with both hands, and still believes maps should tell the truth.
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I. Two epochs, one Chief
Historians will draw a clean fold in the timeline of the Roberts Court. On one side (2005–2019): incrementalism with sharp elbows—campaign finance deregulation, a slow unpicking of the Voting Rights Act, deference to agencies punctured but not canceled. On the other side (2020–2025): a project conducted at full volume—overruling precedents, re-tooling constitutional tests, and recentering judicial power over the modern administrative state. The seam is not just stylistic; it is structural. The Court that once preferred narrow holdings now writes with a carpenter's saw.
If this sounds partisan to you, let me translate it into systems: the Court changed the interfaces by which democracy, markets, and daily governance talk to each other. That is why the decisions feel bigger than their case names.
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II. Before 2020: the long preface
Three pre-2020 holdings set the stage.
Campaign finance, speech with a calculator. Citizens United (2010) and McCutcheon (2014) pulled limits off independent expenditures and aggregate contributions. Whatever your priors, the net effect was to increase the political volume of money. (I am not rehearsing the arguments; I am noting the power curve.)
Elections as a hands-off craft. Shelby County v. Holder (2013) disabled the VRA's preclearance formula, moving racial-discrimination litigation from the veto pen to the courthouse after the maps were drawn. Rucho v. Common Cause (2019) declared federal courts closed to partisan-gerrymandering claims altogether, a profound rule about where democracy is allowed to repair itself.
Administrative law as deference with caveats. Even before 2020, the Court flirted with doctrines that would later grow teeth—skepticism about Auer/Seminole Rock deference; hints of a "major questions" rule for big regulatory moves.
This is the preface to the book we now live in.
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III. After 2020: the switch flips
Start where the sound changed.
A. Rights by history, not balancing • Guns. In Bruen (2022) the Court replaced interest balancing with a "history and tradition" test for Second Amendment restrictions, invalidating New York's "proper cause" requirement for public carry. In Rahimi (2024) the Court, notably, upheld the federal bar on gun possession for those under domestic-violence restraining orders—signaling the historical test isn't a blank check but still privileging analogy over empirics. • Abortion. Dobbs (2022) overruled Roe and Casey, returning abortion regulation to states—an institutional earthquake whose aftershocks in health, privacy, and travel policy will take a decade to map.
B. Speech, religion, and antidiscrimination • 303 Creative (2023) framed a clash between compelled expression and public-accommodations law in favor of the speaker, extending a line from Hurley and Barnette into the digital marketplace. The scholarship is already arguing over its scope. • Students for Fair Admissions (2023) ended race-conscious admissions programs at Harvard and UNC, recasting the permissible vocabulary of equality in higher education.
C. The administrative state: from deference to doubt • West Virginia v. EPA (2022) constitutionalized the major questions doctrine for outsized regulatory moves, demanding clear congressional text for big economic or political questions. • Loper Bright (2024) then overruled Chevron, instructing courts to find the "single best meaning" of ambiguous statutes rather than deferring to agencies—while leaving room to respect agency expertise under Skidmore. This is a jurisdictional keystone, not a footnote. • Corner Post (2024) extended the statute of limitations for APA challenges, clocking the six years from when a plaintiff is injured, not when a rule issued—inviting fresh litigation against long-standing regulations. Jarkesy (2024) required jury trials when the SEC seeks civil penalties, curbing in-house adjudication. Together with Loper Bright, this trio shifts leverage from agencies to courts and defendants.
D. The presidency and accountability • Trump v. United States (2024) recognized presumptive criminal immunity for a former president's official acts and remanded to determine what counts as official—an opinion that reengineers the separation-of-powers playbook for future crises. Fischer (2024) narrowed the use of the federal obstruction statute in Jan. 6 prosecutions. If you felt the terrain under your feet move, you were not imagining it.
E. The city as defendant • Grants Pass v. Johnson (2024) allowed municipalities to enforce public-camping bans without violating the Eighth Amendment merely because people lack shelter—reversing a Ninth Circuit approach that had constrained many Western cities. The homelessness fight returns to policy and state courts.
F. Against the narrative: a few brakes • Allen v. Milligan (2023) surprised court-watchers by reaffirming Section 2 of the VRA against an aggressive rewrite, forcing Alabama to draw a second majority-Black district and rippling into Louisiana and Georgia. A reminder: doctrine can zig.
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IV. Activism, restraint, and the mirror
Conservatives long accused liberals of "judicial activism," a phrase that usually means "your changes, not mine." The last five Terms reverse the charge sheet. Overruling Roe, discarding Chevron, and rewriting the Second Amendment's test are not acts of minimalism. They are, in the Court's own idiom, returns to "history and tradition." But history is a workshop, not a GPS; what you build in it depends on what you bring to the bench.
The deeper through-line is not ideology but institutional reallocation: from agencies to courts; from empirical balancing to historical analogy; from prophylactic democracy-rules (preclearance, partisan-gerrymander policing) to federal abstention. You can call that a philosophy. But you cannot call it small.
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V. The practical ledger (what changes on Monday)
1) For agencies and regulated industries • Litigate early, litigate often, and draft like a grammarian. After Loper Bright, regulations must stand on textual legs sturdy enough to carry judicial scrutiny without Chevron's crutch; after Corner Post, even old rules can attract new challenges from new plaintiffs. Dockets will swell; record-building and statutory craftsmanship become existential. • Enforcement architecture matters. Jarkesy pushes major penalty actions into Article III courts. Agencies should triage which cases need juries and restructure remedial menus accordingly.
2) For states and cities • Homelessness is now a policy problem with fewer federal guardrails. Expect more local experimentation—and more state-court litigation—after Grants Pass. If you criminalize poverty without services, you will win in court and lose in hospitals. • Election law remains an uneven field. With Shelby County's preclearance formula gone and Rucho fencing off federal courts, the VRA's Section 2 and state constitutions do the heavy lifting; Milligan shows §2 still breathes, but do not kid yourself: the burden of proof is now heavier and slower.
3) For companies, universities, and civil society • Speech and equality rub more directly. 303 Creative and SFFA invite a decade of compliance puzzles—how to honor nondiscrimination and diversity obligations while avoiding compelled speech or forbidden classifications. Build policies with narrow tailoring and expressive opt-outs where applicable; be prepared to defend both.
4) For prosecutors of powerful people • Trump v. United States re-draws the route map. The question is no longer merely "did he do it?" but "was it official?" Your indictments must plead with that fork in the road in mind. The dissent called it a crown; the majority called it the Constitution. Either way, the briefing wars just changed venue.
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VI. The method behind the method
What looks like doctrinal chaos obeys a simple meta-rule: front-load history and text; back-load expertise and consequences. In guns, that means 1791 analogies; in environment, that means the major questions switch; in admin law, it means judges, not technocrats, choose among ambiguities. The winners are litigants with deep historical briefs, excellent statutory drafting, and patience. The losers are agencies that wrote to Chevron, cities that planned to a Ninth Circuit precedent, and anyone who thought a forty-year doctrine was immortal.
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VII. Countermelodies worth hearing
Because I am a regulated optimist, I should note the Court's capacity for self-editing. Rahimi shows the historical test can accommodate modern dangers; Milligan shows the VRA's heart still beats; Moore v. United States (2024) took a minimalist path that avoided detonating the tax code with an anti-realization bomb. These are not trivia; they are proof that majorities can still trim their sails.
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VIII. What to build now (a lawyer's to-do list for the next decade)
A bilingual historical record, open to the public. If courts insist on "history and tradition," then scholars, cities, and communities must surface the whole archive—including Spanish and French sources that define water, property, and municipal law in the Southwest and Gulf. (El Archivo, as we argued in a prior essay, is not a luxury; it's an evidentiary pipeline.)
A "post-Chevron" record checklist. Agencies should adopt a rulemaking template that (a) anchors every interpretive move in statutory text; (b) builds a contemporaneous evidentiary file expecting de novo review; (c) documents alternatives and trade-offs with the candor courts reward; and (d) anticipates Corner Post challenges years after promulgation. (We can hand you the two-page version.)
A federalism of competence. With Rucho fencing off federal courts for partisan maps and Grants Pass loosening Eighth Amendment constraints, state courts and constitutions become the main stage. Reformers should fight there—initiative processes, state equal-protection clauses, and state-law right-to-shelter experiments.
Civic translation. Dobbs and Bruen shifted ground for millions overnight. Governments should publish plain-language (and Spanish-language) explainers of what changed, where, and how to comply safely. The law is not just a doctrine; it's a public service announcement.
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IX. Three vignettes for the casebook we'll teach in 2030
A clerk with a map.
In a water case out of New Mexico, a young lawyer wins on a Spanish-era ditch by citing acequia bylaws, an 1890s survey, and a 2024 post-Chevron record that names its statutory verbs like a poem. The judge writes a footnote thanking the glossary. History, made legible.
An agency that learned to write.
A climate rule survives major questions scrutiny because Congress had actually said the quiet part out loud—and the preamble reads like a treatise on the text. The court's opinion sounds almost bored. That boredom is policy victory.
A city that refused to criminalize sleep without offering beds.
Post–Grants Pass, the council pairs a narrow anti-camping ordinance with surge shelter, mental-health beds, and hygiene infrastructure—and publishes outcomes in two languages. The lawsuits don't vanish; the moral fog does.
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X. Epilogue: Courtesy and courage
Some readers will hear only alarms in this survey. I hear a challenge worthy of professionals: to write laws that can stand on their text without apology; to build cases that carry real history, not curated myth; to run cities that solve problems without hiding behind doctrine. The Court has redrawn the century; it is our job to make the new lines habitable.
A republic is a habit. The best answer to jurisprudential whiplash is institutional courtesy—the discipline of clarity, candor, and service. If we keep those habits, even a loud Court cannot drown us out.
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Selected sources (validated)
• Dobbs v. Jackson Women's Health Organization (2022).
• NYSRPA v. Bruen (2022); United States v. Rahimi (2024).
• West Virginia v. EPA (2022) (major questions).
• Students for Fair Admissions (2023).
• 303 Creative (2023) and commentary.
• Loper Bright (2024) (end of Chevron); CRS explainer.
• Corner Post (2024) (APA accrual) and CRS/firm memos; SEC v. Jarkesy (2024).
• Trump v. United States (2024) and contemporaneous coverage; Fischer v. United States (2024).
• City of Grants Pass v. Johnson (2024).
• Shelby County v. Holder (2013); Rucho v. Common Cause (2019); Allen v. Milligan (2023).