Opinion The tragedy of John Roberts
November 4, 2022 at 8:00 a.m. EDT
Listen to Ruth Marcus read her essay. Produced by Charla Freeland.
"On the final day of oral arguments last term, the chief justice’s voice cracked with emotion as he bade farewell to the retiring Justice Stephen G. Breyer. It was a striking moment for the normally buttoned-up John G. Roberts Jr., and one that seemed to signify more than sorrow at the departure of a longtime colleague. It is not far-fetched to imagine that Roberts was mourning the decisive end of his vision of presiding over an institution seen as operating above the partisan fray.
“I’ve lost my only friend on the court,” Roberts told someone afterward.
As Roberts, 67, begins his 18th term, he is an at times isolated and even tragic figure. Roberts wanted to be at the helm of a court that was more often unanimous than splintered; now it is cleaved, 6-3, along hardened ideological lines. Roberts wanted to help shore up the court’s institutional standing; instead, he has watched it plunge in public esteem, helpless to prevent the fall.
He has been outflanked and marginalized by five conservative justices to his right, even as he has been subjected to unsparing criticism by those to his left.
In the last term alone, Roberts witnessed the unprecedented — and, from all appearances, still unsolved — leak of a draft opinion, in the Dobbs abortion case. In the aftermath of that jarring event, his most conservative colleague, Clarence Thomas, openly lamented the days when “we were a family” — and pointedly dated those to the “fabulous court” before Roberts’s tenure.
When the final Dobbs ruling was released, Roberts was a lone voice, his suggested compromise unable to attract a single additional vote.
And with trust in the court at a record low — down 20 points in two years to just 47 percent of Americans saying they had a “great deal” or “fair amount” of faith in the institution — Roberts felt compelled to speak out in its defense, engaging in an extraordinary public back-and-forth with Justice Elena Kagan about the court’s legitimacy.
In short, with the death of liberal Justice Ruth Bader Ginsburg and the arrival of Justice Amy Coney Barrett to shore up the conservative wing, this is the Roberts court in name only. The chief now finds himself in the unexpected position of being — or at least voting — to the left of the new swing justice, Brett M. Kavanaugh.
Conservative justices ranked by ideology
Political scientists Lee Epstein, Andrew Martin and Kevin Quinn ranked justices’ decisions on an ideological spectrum.
Source: Analysis by Lee Epstein, University of Southern California; Andrew D. Martin, Washington University
in St. Louis; and Kevin Quinn, University of Michigan, using the Supreme Court Database.
THE WASHINGTON POST
Roberts remains at the top of the pack of justices voting with the majority — 95 percent of the time in divided cases last term, tied only by Kavanaugh. But that statistic obscures the reality that time after time, Roberts’s colleagues have ignored his pleas for patience.
Roberts has found himself dissenting when his fellow conservatives refused to block Texas’s abortion law as the case was litigated; when they allowed an Alabama redistricting plan to take effect despite the fact that, as Roberts said, the trial court that found it violated the Voting Rights Act “properly applied existing law in an extensive opinion with no apparent errors for our correction”; and when they enjoined New York’s pandemic rules even though restrictions on religious services had been revised. Dobbs wasn’t an outlier.
“I don’t think I would want to be Roberts right now,” said University of Southern California law professor Lee Epstein, who specializes in studying the justices’ voting patterns. “He has some very aggressive, ambitious colleagues on his right who want to do a lot very quickly, and that’s just so not Roberts. … He tries to slow things down, but they’re not going to be slowed.”
Tellingly, conservatives and liberals use the same stark adjective — relevant — when they describe Roberts’s current predicament.
“He’s just less relevant now,” said Mike Davis, who heads the conservative Article III Project and worked to confirm President Donald Trump’s judicial nominees. With three appointments to the court, he said, “Trump transformed the 5-to-4 John Roberts court into the 5-to-4 Clarence Thomas court, meaning it’s more likely the court’s just going to follow the law and not be concerned about the political fallout.”
Harvard Law School professor emeritus Laurence H. Tribe, co-author of a book on the Roberts court, made the same point from the opposite ideological perspective. “He’s largely irrelevant, except that the court has gone so far, so fast that he may become more relevant depending on whether anybody else is chastened,” Tribe said.
The question now is how Roberts will respond to this new reality. He is a chief caught between conflicting imperatives. If he insists on hewing to the go-slow, decide-no-more-than-necessary approach that has been the hallmark of his tenure, he risks appearing weak — and losing what little ability he retains to influence and constrain the conservative majority. If he votes with that majority, as might be his underlying inclination in most cases, he risks contributing to what he has been laboring to prevent: the decline of the institution.
A chief justice is little more than the first among equals; his vote counts no more than that of the other eight justices. His main authority derives from the power, when he is in the majority, to assign the authorship of opinions, either writing himself or giving the job to a colleague.
But Roberts, with a careful eye on history, had a far grander, even audacious, mission in mind, one he laid out in an interview with the Atlantic’s Jeffrey Rosen in 2006 at the conclusion of his first term. “It’s sobering to think of the seventeen chief justices; certainly a solid majority of them have to be characterized as failures,” Roberts told Rosen. “The successful ones are hard to number.”
To reread the interview now, with foreknowledge of the changes to come, is poignant. Roberts talked about the danger of polarized politics, and the “high priority to keep any kind of partisan divide out of the judiciary as well.” He wanted his colleagues to “factor in the Court’s institutional role” and elevate consensus-building over ideological purity.
Like his greatest predecessor, Chief Justice John Marshall, who served from 1801 to 1835, Roberts wanted to see the court speak as often as possible with a single voice, not a cacophony of concurring and dissenting opinions. That would produce more jurisprudential stability and, consequently, more public respect for the court.
It all sounds quaint now. Last term’s numbers tell the story. According to Epstein’s calculations, just 28 percent of the court’s opinions were unanimous in the last term — far below the 41 percent average since Roberts joined the court. The most common voting pattern wasn’t 9-0, as is the general rule, but 6-3. And the vast majority of those (14 of 19), according to statistics compiled by Scotusblog, reflected the six-justice conservative bloc.
“Chief Justice Roberts tried to avoid the polarization of the court from the beginning,” Rosen told me. “The whole point of his vision was to avoid the court blowing itself up and squandering its legitimacy.”
And that is the tragedy of John Roberts. The man whose career betrays virtually no hint of failure appears to be failing at the most monumental task he has confronted, one he set for himself.
Roberts is an accidental chief justice, but his arrival at the court was anything but accident. In a city of glittering résumés, Roberts had compiled one that was burnished to perfection by the time he was nominated to the high court by President George W. Bush in 2005.
Raised in Indiana, the son of a Bethlehem Steel executive, Roberts graduated summa cum laude from Harvard College after just three years, then headed straight to Harvard Law School, where he was managing editor of the law review.
That was capped by the most prestigious of clerkships, for appeals court judge Henry Friendly and then-Justice William H. Rehnquist, and a subsequent trip up the ladder of the plummiest jobs for a conservative young lawyer in the Reagan and George H.W. Bush administrations: special assistant to the attorney general, associate White House counsel, principal deputy solicitor general.
As much as Roberts served as loyal foot soldier in President Ronald Reagan’s legal revolution — memos from the time show him forcefully urging conservative positions — he combined that stance with a Midwestern geniality, a gift for forging across-the-aisle relationships and canny circumspection about exposing his views to public scrutiny.
“An ultimate insider in the capital,” the New York Times wrote after his nomination in July 2005. “Judge Roberts is a conservative, but he has never been an ideological crusader,” said The Post’s Editorial Board, adding that “nobody really knows what Judge Roberts believes, because he has been unusually careful about not discussing his views.”
If Roberts’s paper trail was thin — he had been on the U.S. Court of Appeals for the D.C. Circuit for little more than two years — Democrats had only themselves to blame. Roberts had originally been tapped for the D.C. Circuit by George H.W. Bush in 1992, but the Senate never voted on his nomination; after George W. Bush renominated him in 2001, the Democratic-controlled Senate again delayed acting, and Roberts was not confirmed until Republicans regained control in 2003.
Two years later, the younger Bush nominated Roberts — at age 50 — to replace Justice Sandra Day O’Connor, who retired to help care for her ailing husband. But on Sept. 3, 2005, just three days before Roberts’s confirmation hearings were to begin, chief justice Rehnquist died of cancer. Bush, dealing with the disastrous aftermath of Hurricane Katrina, quickly decided to slot Roberts into Rehnquist’s seat, notwithstanding his relative youth (the youngest chief justice since John Marshall) and scant judicial experience.
That fortuitous timing is important to understanding Roberts’s performance. He has been known to muse about what kind of justice he would have been had he not been invested with the additional responsibility of safeguarding the institution. That is not to say that Roberts’s votes as chief justice have trended liberal — anything but. Roberts is no hardcore originalist — he has said that “I do not have an overarching judicial philosophy” — but he is unmistakably conservative.
“He may think the court is moving too fast, but he thinks it’s moving in the right direction,” said University of Chicago law professor Aziz Huq, who serves on the board of the liberal American Constitution Society.
On race, which for decades has been an animating issue for Roberts, he has written opinions decimating the Voting Rights Act and preventing public schools from using race to achieve diverse classrooms. On gay rights, he dissentedbitterly when the court found that the Constitution protects a right to same-sex marriage, warning that “stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
On campaign finance, he has demonstrated unrelenting hostility toward efforts to reduce the influence of money in politics. On government regulation, he has voted to curtail the power of administrative agencies, most recently using a case limiting the Environmental Protection Agency’s ability to combat climate change to declare a new “major questions” doctrine that will invite further challenges across the regulatory landscape.
And yet, Roberts — even before conservatives took firm control — sometimes put his foot on the brake. Before he dismantled Section 5 of the Voting Rights Act, he gave Congress one last chance to fix it, noting that “the importance of the question does not justify our rushing to decide it.” Most famously, in 2012 he switched his initial vote to strike down the Affordable Care Act and, engaging in some interpretive contortions, saved the statute but infuriated his conservative colleagues. Three years later, he did it again — this time adding insult to conservative injury because his vote wasn’t even needed to save the statute.
Roberts’s tenure can be divided into three distinct Roberts courts. The first, which lasted from 2005 until Justice Anthony M. Kennedy’s retirement in 2018, is best described as a jump-ball court: Often Kennedy would lean in a conservative direction, but sometimes — in particular, on gay rights — he would side with liberals. And sometimes, as in the Obamacare case, Roberts himself would surprise and determine the majority.
The second chapter was fleeting — from Kennedy’s departure until Barrett’s arrival in October 2020, the span of just two terms. With five conservatives and four liberals, Roberts was finally in control, his vote determinative. He was both the chief justice and the median justice, imbued with remarkable influence. “Roberts is not only the most powerful player on the court. He’s also the most powerful chief justice since at least 1937,” Epstein told the New York Times’s Adam Liptak in June 2020, as the court was wrapping up its work.
In that term’s divided cases, Roberts voted with the majority 95 percent of the time — more than any chief justice since at least 1953 and more than any of his colleagues. (Kavanaugh was next with 90 percent, and Neil M. Gorsuch followed with 82 percent, with the rest of the court hovering between the mid-50s and mid-60s.)
Among that court’s 5-4 rulings, Roberts was in the majority in every case but one. He cast an uncharacteristic vote in favor of abortion rights, a decision he said was compelled by a precedent from which he had dissented, and another blocking Trump’s bid to repeal immigration protections for “dreamers.”
Three months later, Ginsburg died.
Once, conservatives had found themselves reduced to griping about what Justice Antonin Scalia, in a 2007 campaign finance case, called Roberts’s “faux judicial restraint.” With the arrival of Barrett in late 2020, Roberts’s go-slow admonitions proved, for the most part, unpersuasive.
Now, the more conservative justices show little inclination to heed him — a phenomenon on painful display in last term’s abortion case. Roberts could summon no justices to support his middle-ground position, to uphold Mississippi’s 15-week abortion ban but stop short of overruling Roe v. Wade.Justice Samuel A. Alito Jr.'s majority opinion dismissed Roberts in almost sneering tones. “The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach,” Alito wrote.
It was a dramatic turnabout from Roberts’s ascendant position just a year before. “This,” said one conservative lawyer, “was John’s worst nightmare.”
Majorities can turn out to be fleeting, although the current supermajority appears rather durable. It’s possible that Kavanaugh will be taken aback by the public reaction to the court’s lurch to the right and show more willingness than he has so far in helping Roberts slow things down.
But, although Kavanaugh and Roberts tend to vote together more than any other pairing of justices, in most of the critical cases where Roberts has sided with the liberals, Kavanaugh has declined to go along. Less likely, but not impossible, Barrett could still surprise; she’s new, and her record on some issues — race, to take one current example — is still unwritten.
That leaves Roberts, as he nears the end of his second decade on the court, a chief without a constituency.
Many of his fellow conservatives, including some of his own colleagues, view him with suspicion, if not outright disdain. Roberts, as they see it, has subordinated his simple duty to apply the law in the service of somehow protecting the institution — and, perhaps not coincidentally, his own reputation.
Liberals understand that his seeming moderation is only by contrast to his hot-under-the-collar colleagues, and that his ultimate goals are deeply at odds with their own constitutional vision. Roberts might be an occasional accomplice, but he is not their ally.
He faces every temptation to join the conservative majority. That imbues him with the power to assign the writing of key opinions to himself, or, alternatively, to keep the authorship away from the most extreme conservatives. The bottom line might be the same. But the precise language the court uses in deciding a case matters for those yet to come; it matters whether an opinion’s author is Thomas or Kavanaugh.
As it happens, the court’s highest-profile cases this term — on affirmative action, voting and the right of a Christian business owner to refuse to serve same-sex weddings — will all push Roberts in the direction of his fellow conservatives. “The fact is that the kind of issues that he cares most about are some of the most important cases on the docket this term,” said Donald B. Verrilli Jr., who was solicitor general under President Barack Obama. “I feel like he can and will reassert his leadership by playing a dominant role in those cases, and it will seem like, ‘Oh, Roberts is back. He’s regained control.’ ”
Perhaps, but for how long? Roberts might be with the radical majority on race, but will that alliance hold in other areas? And would this be Roberts in control — or merely the illusion of control? The majority to his right, to the extent it holds solid, retains the power to do what it will, whether Roberts signs on or not. It is fully aware it holds that power and is not afraid to exercise it.
Conversely, Roberts might see benefits to being on the losing side. As a nominee, Roberts famously insisted that judges are mere neutral umpires calling balls and strikes; as chief justice, he publicly reprimanded Trump for denouncing a jurist as an “Obama judge.” Roberts is the chief justice of the United States, the head of the entire judiciary. He might perceive an advantage in demonstrating with his vote that the high court — and the judiciary itself — is not neatly divided along party lines.
And there is another way for Roberts, who once aspired to be a history professor, to think about his choice: over the long sweep of time. Ineffective now might look heroic decades hence. Roberts can be remembered as the chief justice who went along with the conservative crowd and, in so doing, helped bring disrepute on an activist, radical court. Or he can be the conservative who tried to stop, or at least slow, the tide, lauded for his steadfastness even if it proves unavailing.
History seems certain to remember the Roberts court in a different way than John Roberts once imagined, but he retains the ability to shape history’s verdict on his own performance."
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