During his 17-year tenure as Chief Justice, John G. Roberts Jr. has attempted to project an image of the consummate institutionalist — a right-of-the-centre beacon of integrity committed to the Supreme Court’s role as an impartial arbiter of the law. It must therefore be painfully ironic that the legacy of the Roberts Court will surely be that of a downsized judiciary: the court’s composition politically rigged, its deliberations compromised by an unprecedented leak, its membership torn by the same irreconcilable partisan divisions as the country at large and his public reputation at rock bottom.
Laying all of this at the feet of the presiding chief justice is not entirely fair. Contrary to popular belief, the Chief Justice is merely “first among equals” with little power to bend the institution to his will. The chief presides over the court’s post-argument conference, where preliminary votes are held. If he is in the majority (but only then), the chief can also choose the author of the court decisions. Some Chiefs were masters of persuasion (Earl Warren built unanimity around Brown vs. Board of Education in the 1950s); others not at all (Warren Burger generated resentment at every turn in the ’70s and ’80s).
But even the most effective chiefs were powerless to break deep ideological bonds. In the end, the power of the court boils down to counting the votes. As Judge William Brennan liked to say, the most important rule of the court is the rule of five – five votes win no matter what, and the boss only gets one.
The last 50 years show it. Amid increasingly sharp ideological divisions, the direction of the court was not determined by the various chief justices but by the judiciary, which was key to establishing a five-vote majority on the key issues of the day. On the burger court, that was Lewis Powell. At Rehnquist Court, in the Bush and Clinton years, that was Sandra Day O’Connor or Anthony M. Kennedy – so much so that pranksters called this era the O’Kennedy Court.
Now Roberts has ceded that “swing” role to whoever of the court’s five archconservatives might prove to be the least right-wing, arguably Brett M. Kavanaugh, though the five are largely a monolith. Roberts is at their mercy, and they leave his alleged commitment to institutionalism in tatters.
But one should not pity the chief too much. All on his own, he did much to earn the court its newfound reputation for partisanship and radical conservatism, and he helped lay the groundwork for Trump’s takeover of the institution.
At his confirmation hearings, Roberts placed himself squarely in the tradition of the nominees, who were willing to utter any disingenuous nonsense that would facilitate confirmation. In his case, that meant comparing himself to a baseball umpire. Judges, he maintained, do not shape the law by interpretation; they are merely impartial referees who call balls and strikes.
If so, for Roberts as a UMP, pretty much any legal argument advancing the interests of the Republican Party is a punch to the heart of the record.
It is Roberts who lobbied for the court’s decisions to scrap the Voting Rights Act, supporting the voter-suppression tactics used by the GOP to reduce Democrat turnout, particularly in communities dominated by blacks are populated.
It was Roberts who led the charge in scrapping regulations on campaign finance, a particular gem of a Republican party eager to raise dark money. Along the same lines, Roberts wrote op-eds, expanding the right of corporations to channel stock from shareholders to candidates while handcuffing pro-democracy-leaning unions to do the same.
Roberts has also urged the court to play the least possible role in overseeing the political maneuvering that the GOP has used to magnify the weight of GOP voters relative to Democrats.
And in the past two weeks, it’s been Roberts who drafted the West Virginia vs. EPA Opinion, which curtailed the government’s powers to combat climate change; Roberts lends his voice to smash a modest gun control measure restricting concealed carry; Roberts is willing to hollow out Roe vs. Wade even if he doesn’t vote to delete it.
After all, it was Roberts who stood by silently as then-Senate Chairman Mitch McConnell skewed the court’s political composition by denying President Obama’s nominee, Merrick Garland, a confirmation vote.
These measures provided a strong basis for claims of partiality of the judiciary. And the court’s accelerating partisan taint is only compounded by the irony that Roberts’ legal agenda has helped shape the political landscape that has produced the Trumpism that threatens his legal legacy.
Take, for example, the refusal cited by Roberts to allow police gerrymandering. This approach enabled state legislatures to dramatically increase the number of “safe” GOP and Democratic counties, shifting winner selection from the general election to the party primaries, where partisan voters dominate. The result has been a sharp rise in extremism and polarization, and a legislative deadlock as centrist legislators all but disappeared. This was the political environment in which the anger and cynicism of Trump’s politics took root, which in turn led to the radical court that Roberts chairs.
Undoubtedly, Roberts – the judge who saved Obamacare – is genuinely dismayed at the internal and external wounds inflicted on the institution to which he is dedicated. The court has become a near-perfect mirror of our body politics, and more specifically, the court’s GOP commissioners have come to mirror the party itself. As in politics, the established Republicans Roberts represents have been routed by the Trump wing, represented by the now ascending five justices who are meaningfully to Roberts’ right.
And yet, to understand why his legacy is now being written by others, Roberts need do little more than look to himself.
Edward Lazarus, who worked for Justice Harry A. Blackmun, is an attorney and the author of Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court.
https://www.latimes.com/opinion/story/2022-07-03/chief-justice-john-roberts-roberts-court-supreme-court Op-Ed: How Chief Justice John Roberts laid the groundwork for the Trump court