During his 17-year tenure as Chief Justice, John G. Roberts, Jr. sought to project an image of the consummate institutionalist – a centre-right beacon of integrity championing the role of the Supreme Court as the impartial arbiter of the law. It must be a painful irony that the legacy of the Roberts court will no doubt be the legacy of reduced judiciary: The composition of the court is politically manipulated, its deliberations are compromised by an unprecedented leak of information, its members are torn by the same insurmountable partisan divisions as the country as a whole, and its public reputation is at its lowest ebb.
Putting all this on the shoulders of the presiding chief judge is not entirely fair. Contrary to popular belief, the Chief Justice of the Supreme Court is merely a “first among equals” with little authority to bend the institution to his will. The chief actually presides over the post-argument judicial conference in which a preliminary vote is taken. In the majority (but only then), the boss also chooses the author of the court decision. Some leaders were masters of the art of persuasion (Earl Warren in the 1950s creating unanimity around Brown vs. Ministry of Education); others not at all (Warren Burger drew resentment at every turn in the 70s and 80s).
But even the most effective leaders proved powerless to overcome deep ideological commitments. In the end, power in the court comes down to counting votes. As Judge William Brennan liked to say, the most important rule in court is the Rule of Five: five votes win no matter what, but the chief only gets one.
The last 50 years have proven this. With increasingly sharp ideological divisions, the direction of the court was determined not by the various presidents, but by whichever judge was the key to obtaining a five-vote majority on the major issues of the day. At the burger deck, it was Lewis Powell. In the Rehnquist court, during the Bush and Clinton years, it was Sandra Day O’Connor or Anthony M. Kennedy—so much so that jokers dubbed that era the O’Kennedy court.
Roberts has now relinquished this “fluctuating” role to whichever of the court’s five arch-conservatives proves least right. possibly Brett M. Cavanaugh, although the five is basically a monolith. Roberts is at their mercy, and they are destroying his alleged commitment to institutionalism.
But one should not feel too sorry for the leader. He did much single-handedly to earn a new-found reputation from the court for high-party and radical conservatism, and he helped lay the groundwork for Trump’s takeover of the institution.
In confirmation hearings, Roberts followed the tradition of candidates who were ready to utter any insincere nonsense that would facilitate confirmation. In his case, this meant comparing yourself to a baseball referee. He argued that judges do not shape the law by interpretation; they are just impartial referees who announce balls and strike.
If so, it just so happens that for Roberts, as a judge, almost every legal argument that tends to advance the interests of the Republican Party is a pitch right to the heart of the plate.
It was Roberts who defended court decisions that destroy the Voting Rights Act, thus contributing to the voter suppression tactics that the Republican Party uses to reduce Democratic turnout, especially in communities populated mostly by people of color.
It was Roberts who spearheaded the effort to repeal campaign finance regulations, a particular weakness of the Republican Party seeking to raise dark money. In a similar vein, Roberts has written opinions that empower corporations to funnel large amounts of shareholder funds to candidates while handcuffing the ability of Democratic-leaning unions to do the same.
Roberts also made the court play as little a role as possible. in the fight against political fraudwhich the Republican Party used to increase the weight of GOP voters over Democrats.
And in the last two weeks, Roberts writes West Virginia vs. Opinion of the Environmental Protection Agency limiting government power to combat climate change; Roberts has spoken out in favor of abolishing a modest gun control measure restricting concealed carry; Roberts wants to gouge Rowe vs. Wade even if you don’t vote to remove it.
Finally, it was Roberts who silently stood by when then Senate leader Mitch McConnell misrepresented the court’s political composition by denying President Obama’s nominee Merrick Garland a confirmation vote.
These actions provided a solid basis for claims of judicial partiality. And the court’s intensifying partisan incursion is only exacerbated by the irony that Roberts’ court agenda helped shape the political landscape that gave birth to Trumpism that threatens his judicial legacy.
Take, for example, Roberts’ refusal to deal with the police. This approach has allowed state legislatures to dramatically increase the number of “safe” GOP and Democratic districts, thereby shifting the choice of winners from general elections to partisan-dominated party primaries. The result was a sharp rise in extremism and polarization, and a legislative deadlock as centrist legislators all but disappeared. It was a political environment in which the anger and cynicism of Trump’s policies took root, which in turn led to a radical trial presided over by Roberts.
No doubt Roberts… justice that saved Obamacare – sincerely alarmed by the wounds, internal and external, inflicted on the institution to which he is dedicated. The Court has become an almost perfect reflection of our political body, and more specifically, the Republican Party’s court appointees have become a mirror of the party itself. As in politics, the establishment Republicans represented by Roberts have been crushed by Trump’s wing, represented by the five judges now to Roberts’ right.
And yet, to understand why others will now write about his legacy, Roberts only needs to look at himself.
Edward Lazarus, serving as Judge Harry A. Blackman, is an attorney and author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.