Before 2020 and After: from incrementalism to accelerationism
By a regulated optimist who grades in pencil, votes with both hands, and still believes maps should tell the truth.
I. A tale of two tempos
or fifteen years, Chief Justice John Roberts conducted the Court like a string quartet: conservative, cautious, obsessed with key changes more than crescendos. Call it minimalism—long opinions that moved doctrine by inches. Since 2020, the tempo changed. The same Chief now fronts a chamber orchestra that likes drum fills, and the set list lands fast: Dobbs (abortion), Bruen (guns), West Virginia v. EPA (climate), SFFA (affirmative action), 303 Creative (speech vs. civil-rights laws), then a 2024 trilogy (Loper Bright, Corner Post, Jarkesy) re-plumbing the administrative state—capped by a historically sweeping presidential immunity opinion. The Court didn't just decide cases; it rearranged default settings across American life.
If you work in law, policy, climate, tech, labor, universities—or politics itself—you felt the pivot. This essay maps the two Roberts Courts—pre-2020's incrementalism and post-2020's acceleration—and offers a field manual for operating in the legal weather they've made.
II. The pre-2020 score: slow doctrine, big effects
Even in the "cautious" era, the Court delivered landmark conservative wins—often framed as workaday statutory interpretation or federalism housekeeping.
Campaign finance as speech. Citizens United (2010) invalidated restrictions on independent political expenditures by corporations and unions; money-as-speech became the rule that shapes every election cycle's soundscape.
Voting rights without a floor. Shelby County v. Holder (2013) disabled the preclearance formula of the Voting Rights Act, letting previously covered jurisdictions change election rules without federal permission. The opinion's formal equality reshaped real power.
Partisan maps beyond federal courts. Rucho v. Common Cause (2019) declared partisan gerrymandering claims nonjusticiable in federal court—pushing map fights to the states and entrenching whoever drew the last lines.
Unions defanged. Janus v. AFSCME (2018) overturned Abood, striking "fair-share" fees for public-sector unions—an earthquake in labor's balance sheet.
This was conservatism via removal: peel back floors (preclearance), step away from arbiters (federal courts in mapping), redefine rights (money as speech) and let politics fill the vacuum. The doctrine often moved by narrow holdings with wide shadows.
III. 2020 and after: maximalism with a method
Post-2020, the center of gravity shifted from incremental to transformative. The cases weren't just about outcomes; they changed how courts judge.
1. History as gatekeeper
In Bruen (2022), the Court told judges to test modern gun laws against historical tradition—a method that de-centers contemporary evidence about violence and public safety and recenters selective snapshots of 18th–19th-century regulations. Lower courts have struggled to operationalize it because the archive is a poor codebook.
2. Rights erased, then displaced
Dobbs (2022) overturned Roe/Casey, announcing that abortion is not constitutionally protected and returning regulation to the states. Whatever one's morals, the legal fact is simple: a half-century floor vanished, and a patchwork replaced it.
3. The "major questions" brake
West Virginia v. EPA (2022) formalized a doctrine that demands clear congressional authorization for "major" agency actions—shrinking executive problem-solving in complex domains like climate where Congress often legislates in generalities.
4. Equality re-read
In Students for Fair Admissions (2023) the Court ruled that Harvard/UNC admissions programs violate the Equal Protection Clause, effectively ending race-conscious admissions in higher ed.
5. Speech vs. civil-rights law
303 Creative (2023) held that a designer could not be compelled to create expressive content celebrating same-sex marriage, spotlighting friction between public-accommodations regimes and a broadening view of compelled speech.
6. WOTUS narrowed
Sackett v. EPA (2023) cut the Clean Water Act's reach to wetlands with a continuous surface connection to regulated waters—prompting regulatory rollbacks and new rulemakings.
7. The administrative state re-plumbed (2024)
- Loper Bright overruled Chevron, telling courts to decide statutory meaning de novo rather than defer to reasonable agency readings.
- Corner Post resets the APA clock, allowing challenges years later when a new plaintiff is first injured.
- Jarkesy requires jury trials when the SEC seeks civil penalties for fraud, limiting in-house adjudication.
Together, these cases make rules harder to write, easier to sue, and riskier to enforce.
8. Presidential immunity (2024)
In Trump v. United States, the Court recognized absolute immunity for core presidential acts and a presumption of immunity for official acts—recasting accountability at the apex of government.
Add a procedural drumbeat: a rising emergency/"shadow docket" that green-lights or halts policies through late-night, often unsigned orders—Texas SB8 foremost among them—and you have a Court that acts quickly, sometimes with opaque reasoning, and only later writes the treatise.
IV. Is this "judicial activism"—or just jurisdiction with sharper elbows?
Critics call this conservative judicial activism, and not without reason. The Court has:
- Overruled long-standing precedents (Roe, Abood/Chevron) and rewritten default doctrines.
- Expanded judicial power over agencies (less deference, evergreen challenges), while contracting it over politics (no federal policing of partisan gerrymanders).
- Used emergency orders to make or unmake law in ways that try cases without trials, a trend documented by scholars like Stephen Vladeck.
Defenders answer that the Court is restoring the Constitution's separation of powers, reining in agency overreach, and rejecting judicial management of politics. The problem with this comfort is asymmetry: when courts remove floors (preclearance, Roe) and add brakes (major questions) without Congress replacing either, what fills the gap is power unreviewable by design—state majorities in mapping, executive discretion in criminal charging, private rights eroded by delay.
V. The through-line: method is destiny
Across these cases is a common spine:
- Archive-first tests (e.g., Bruen's history-and-tradition) shrink the space for modern empirical governance.
- Textual muscularity (e.g., West Virginia, Loper Bright) raises the price of adaptive administration.
- Procedure as policy (emergency orders, Corner Post) lets litigants reopen settled regimes and race to nationwide effects.
What changed after 2020 isn't only where the Court lands; it's how fast and how final the landings feel.
VI. Case studies: three rooms where doctrine became weather
A) Climate & the grid
West Virginia narrowed EPA levers for grid decarbonization; Sackett trimmed wetlands jurisdiction; Loper Bright forces the agency to win on the pure text. In the same period, FERC/DOE tried to accelerate long-range transmission with Order 1920 and NIETC designations; post-Chevron litigation now targets how those rules were written as much as what they say. In practice: more lawyers at the substation.
B) Elections & representation
The Court took partisan gerrymandering off the federal docket (Rucho) and then surprised observers by reaffirming the VRA's §2 framework in Allen v. Milligan (2023)—only to set the table in 2025 for Louisiana v. Callais, which asks whether §2 itself is constitutional in redistricting. The ground is moving even as voters stand still.
C) Presidency & accountability
Trump v. United States's immunity doctrine redraws the boundary between law and high office; paired with Fischer narrowing one Jan. 6 charge, the message to prosecutors and Congress is: be exquisitely specific. The result is governance that must plan for less hindsight punishment and more foresight discipline.
VII. What to do if you still have to govern tomorrow morning
1) Write like the courts will mean it
Post-Loper Bright, agencies and legislatures must draft with text-first clarity, backfilled by robust records. Assume no deference; build statutory hooks into every clause. (Your general counsel should sleep with the U.S. Code under the pillow.)
2) Expect late challenges; build evergreen justifications
Corner Post means rules can be attacked years later by newly injured plaintiffs. Publish periodic reaffirmations with updated evidence so your record doesn't age into fragility.
3) Move fights where law still speaks
If federal courts won't police partisan gerrymandering, build state constitutional floors (several states have done so) and invest in independent commissions where politics allow. Milligan shows §2 still breathes—for now.
4) Re-tool civil-rights enforcement for the new map
After Dobbs and 303 Creative, align strategy around state statutes, municipal ordinances, and contracting (e.g., nondiscrimination in public funding). Don't rely on federal umbrella rights that may not open when it rains.
5) Climate policy: regulate narrower, build bigger
Where EPA levers are constrained, infrastructure law (transmission, ports, building codes) and appropriations (grants, tax credits) do quieter work with fewer Chevron-size risks. Pair that with FERC/DOE's long-term planning architecture and write records to survive major-questions scrutiny.
6) Democracy hygiene: sunlight on the emergency docket
Track emergency applications that affect your jurisdiction; publish plain-language bulletins explaining what changed and for how long. Read Vladeck not as lament, but as a manual for monitoring the orders that govern you at 2 a.m.
VIII. The fairness paradox (or, why "judicial restraint" means different things now)
Conservatives once accused liberals of judicial activism for finding unenumerated rights; today's critics accuse conservatives of aggressive judicial restraint—curtailing agencies, barring federal adjudication of maps, emptying long-standing precedents—on the theory that less government is more constitution. Both camps claim the mantle of restraint; what differs is where they put the weight: courts vs. agencies, original history vs. contemporary governance, federal vs. state. The post-2020 Court has chosen a configuration that raises transaction costs for national policy while lowering many for state-level experiments—some emancipatory, some exclusionary.
IX. Three scenes (because jurisprudence is lived)
Phoenix, a building department at 9:12 a.m.
A planner revises a decarbonization rule. The margin note reads: "Find an explicit statutory verb—no Chevron to save us. Add cost curve and reliability data to the record." The rule shrinks, but hardens.
Montgomery, a map room at 4:47 p.m.
An organizer prints two sets of maps: one for federal §2, one for the state constitution. The same neighborhoods change color; the same citizens knock doors. The law is a hallway with many doors; the trick is to try more than one.
Washington, a newsroom at 11:58 p.m.
A producer refreshes the Court's orders list. An unsigned paragraph has changed healthcare rules for six states—effective immediately. She rewrites the chyron: "Emergency order modifies coverage—here's what it does, for how long, and who can sue tomorrow." She is doing public administration by explanation.
X. Epilogue: The politics of courtesy
Vonnegut would wish us luck; Borges would hand us a concordance. I'll settle for courtesy—the democratic habit of writing rules people can understand and building institutions that withstand disagreement. The Court has chosen a method that prizes text, history, and a skeptic's eye toward agencies. We can mourn or adapt. Better to adapt—and to do what legislatures are paid to do: legislate clearly, fund competently, and respect the bilingual, bi-civic reality of the country we actually live in.
The two Roberts Courts teach the same lesson in different keys: method is destiny. If we want our policies to survive the new method, we must write like it—and govern as if courts are not our plan, but our audit.
Sources (validated)
- Campaign finance: Citizens United v. FEC (2010) case file & plain-English explainer
- Voting rights: Shelby County v. Holder (2013) case file & overview
- Partisan gerrymandering: Rucho v. Common Cause (2019)
- Unions: Janus v. AFSCME (2018) case file & analysis
- Abortion: Dobbs v. Jackson Women's Health (2022) & coverage
- Guns/history test: NYSRPA v. Bruen (2022) & analysis
- EPA & major questions: West Virginia v. EPA (2022), opinion & analysis
- Affirmative action: SFFA v. Harvard/UNC (2023)
- Compelled speech vs. public-accommodations: 303 Creative v. Elenis (2023), opinion & coverage
- Clean Water Act wetlands: Sackett v. EPA (2023), opinion & regulatory aftermath
- Administrative state 2024: Loper Bright (opinion & coverage), Corner Post (opinion & coverage), SEC v. Jarkesy (opinion & coverage)
- Presidential immunity: Trump v. United States (2024) opinion & coverage
- Emergency docket / SB8: SCOTUS midnight order & subsequent analysis; Vladeck's work on the shadow docket
If you want, I can spin this into a two-panel visual for the site: "Before 2020 / After 2020" with a doctrine matrix (rights, regulation, remedies), plus a litigator's checklist for drafting rules that survive post-Chevron review.
This is the fourteenth in the Sol Meridian series exploring the hidden continuities that shape American public life. A comprehensive analysis of the Roberts Court's two distinct phases and their impact on American governance.