WASHINGTON – In a series of dazzling decisions in the past two weeks, Chief Justice John G. Roberts Jr. voted to expand LGBTQ rights, protect young immigrants known as Dreamers, and void an abortion law in Louisiana. In all three decisions, he voted with the four-member liberal wing of the court.
Those decisions encouraged progressives and angered the conservative allies of the justice chief. But those reactions obscured a broader truth about Chief Justice Roberts: 15 years after his tenure, he now wields a level of influence that has prompted experts to seek historical comparisons.
“Roberts is not only the most powerful player on the court,” said Lee Epstein, a law professor and political scientist at the University of Washington in St. Louis. “He is also the most powerful justice president since at least 1937.”
An incrementalist and institutionalist, the president of the general court generally pushes the court to the right in small steps, with an eye on its prestige and legitimacy. He is impatient with legal shortcuts and, at just 65, can afford to play the long game.
Chief Justice Roberts has replaced Judge Anthony M. Kennedy, who retired in 2018, as a member of the court at his ideological center, and his vote is now crucial in closely divided cases. Being both the president of the tribunal and the deciding vote confers extraordinary power.
But his fundamental role on the court could be fleeting. If President Trump could name a substitute for Justice Ruth Bader Ginsburg, who is 87, or Justice Stephen G. Breyer, who is 81, the Chief Justice would surely be flanked by a conservative majority to his right.
And if Joseph R. Biden Jr. wins the presidency, he may have fewer opportunities to remodel the court anytime soon, as the oldest member of the conservative wing of the court, Judge Clarence Thomas, is 72 years old, which is relatively young by standards. of the Court.
But for now, Chief Justice Roberts assigns the majority opinion when he is a majority, which these days is almost always. He uses that power strategically, choosing colleagues who are likely to write broadly or limitedly, and saving important decisions for himself.
In its first 14 terms, it was majority in approximately 88 percent of the time. So far this term, that number has skyrocketed to 98 percent, Professor Epstein found. “Even more surprising,” he said, “is that Roberts voted with the majority in 96 percent of non-unanimous decisions, compared to his 80 percent average. This is the best demonstration by a chief justice from at least the 1953 mandate. “
But this may be the most striking statistic: there has been a majority in each of the 10 decisions decided by 5 to 4 or 5 to 3 votes so far this period. No chief justice has been a majority in all narrowly divided cases for an entire period since Chief Justice Charles Evans Hughes in the period ending in 1938, and that was only in four cases.
Chief Justice Roberts has spoken with admiration of Chief Justice Hughes and his skilful management of a confrontation with President Franklin D. Roosevelt. It emerged in 1937, when Roosevelt, unhappy with Supreme Court decisions overriding his New Deal programs, announced a plan to add judges to the court.
“One of the biggest crises the Supreme Court has faced since Marbury v. Madison was the FDR court packing plan,” said Chief Justice Roberts in 2015 at New York University, “and it was Hughes’s turn. guide a very unpopular Supreme Court through that high level. ” afternoon showdown against the most popular president of the United States since George Washington. “
“There are things to learn from that,” Chief Justice Roberts said, and he appears to have applied those lessons to his relationship with Trump, who has attacked the very idea of judicial independence.
Chief Justice Roberts was appointed by President George W. Bush in 2005 and, at the time, was thought to be a reliable product of the conservative legal movement. Over the years, he occasionally disappointed his supporters and allies, especially by voting twice to uphold the Affordable Care Act and rejecting the Trump administration’s efforts to add a citizenship question to the census.
But those disappointments don’t compare to the fury that followed recent decisions. Conservatives said the chief justice has abandoned the principle in an effort to protect the court’s reputation, and his, from accusations that it is a political institution.
“Americans expecting justice for women and unborn babies were disappointed again today by John Roberts,” said Senator Tom Cotton, R-Arkansas. “The chief justice may believe that he is protecting the institutional integrity of the court, but in reality, his politicized decision-making only undermines it.”
Conservatives said they suspected the Chief Justice was acting, at least in part, out of disgust for Trump, who for years lashed out at federal judges who ruled against him and his policies. They cited the majority views of the chief justice who rejected the administration’s rationale in the Census and Dreamers cases.
A couple of cases related to Trump’s efforts to block the disclosure of his financial records are among those left to be decided by the court on this term. They will test the leadership of Chief Justice Roberts, and your votes on them will add important details to the portrait of him that has emerged so far.
Chief Justice Roberts has tangled with the president before, issuing an extraordinary statement in 2018 after Trump criticized a ruling by an “Obama judge.”
“We do not have judges for Obama or Trump, Bush or Clinton,” said the president of the court. “What we have is an extraordinary group of dedicated judges who do their best to do the same right to those who stand before them. That independent judiciary is something for which we should all be grateful. ”
In other settings, the chief judge has insisted that judges not act as supporters. “We don’t work as Democrats or Republicans,” he said in 2016.
Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision vindicated statements by Chief Justice Roberts.
“The chief is sending a broader message to both parties, and this time in this case it is the Republicans who are taking the hit,” said Professor Lazaro. “But the message would be the same if it was about Democrats and their favorite position would have lost.”
The message was this, Professor Lázaro said: “We cannot be expected to behave as partisan legislators.”
The abortion case concerned a Louisiana law that was essentially identical to a Texas law that the court had reversed just four years ago, before Trump appointed two new judges. In dissent in 2016, Chief Justice Roberts had voted to uphold Texas law.
Professor Lázaro said he suspected that the president of the tribunal was offended by the idea that a change in the composition of the court should guarantee a different outcome in what was ultimately the same case.
This term, according to Professor Epstein, the president of the court Roberts has voted with liberal and conservative judges at more or less equivalent rates.
“In a day and age of ‘fear and disgust’ between opposing supporters,” he said, “this is quite extraordinary.”
Melissa Murray, a law professor at New York University, said she had considered alternative explanations for Chief Justice Roberts’ vote in the abortion case. One was that he was “a closet liberal.” The other was that she was “a deeply rooted institutionalist intention to preserve the legitimacy of the court and the values of the rule of law.”
She said the second explanation was more likely to be true, though she said her concurring opinion in the abortion case had somewhat limited the strength of the 2016 precedent she said she was defending.
Mike Davis, a former attorney for the Senate Judiciary Committee who is now head of the conservative Project Article III, said he was baffled by the votes of Chief Justice Roberts.
“The chief rules on these cases in such a way that he believes he is protecting the integrity of the Supreme Court,” Davis said. “And only the boss understands the method for this madness.”
But he added that the decisions would motivate conservative voters in the upcoming elections to endorse Trump and Republican Senate candidates in hopes of consolidating a more reliable conservative majority in court.
“Over the next four years, the President of the United States could appoint four or more Supreme Court justices,” Davis said. “And that is why it is so important for conservatives to come forward and vote.”
Professor Lázaro said that this type of thinking lost a distinction between politics and law.
“The boss’s clear message is that this is not how judges do their jobs,” he said. “It is a cross shot of presidential candidates campaigning with nominee lists based on the assumption that, if confirmed, they will of course necessarily vote based on the preferences of the majority that supported that candidate.”