Roberts’ Attempts to Depoliticize Court May Have Unintended Consequences
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By James J. Barney, Professor of Legal Studies, School of Security and Global Studies, American Military University
In the recently concluded U.S. Supreme Court term, decisions in three high-profile cases called public attention to Chief Justice John Roberts and his decision-making.
These cases included one that struck down a Louisiana law requiring doctors performing abortions to have admitting privileges at a local hospital. Another case interpreted the “because of sex” clause in Title VII to prohibit discrimination based on sexual identity and orientation. The third case questioned President Trump’s stated reasons for terminating the Deferred Action for Childhood Arrivals (DACA) program.
In all three cases, Chief Justice Roberts voted with the four Justices viewed as liberals (Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) as such, his ideological opposites. With his votes in these cases, Roberts added to the growing media narrative that the Chief Justice has emerged as the critical swing vote on the Supreme Court since Justice Anthony Kennedy’s retirement.
Widely perceived as defeats for President Trump and further evidence of the Chief Justice’s emerging growing influence on the direction of the Court, these decisions were predictable to those who have watched the Supreme Court over the past two years.
Roberts’s Attempt to Bolster the Court’s Legitimacy with the Public and Legal Community
For some, these three cases represent further evidence of Roberts’s attempt to bolster the Court’s legitimacy with the public and legal community. However, his votes in these three cases have thrust the Supreme Court into one of the main issues in the 2020 Presidential election, resulting in a host of unintended consequences.
To make sense of Chief Justice Roberts and his recent votes in these three high-profile cases, Joan Biskupic’s 2019 biography The Chief: The Life and Turbulent Times of Chief Justice John Roberts is a must read. An old saying states that a “good lawyer knows the law; a great lawyer knows the judge.” Biskupic’s book provides a compelling portrait of both the man behind the robes and what motivates his decision-making.
A Good Lawyer Knows the Law; A Great Lawyer Knows the Judge
Biskupic details how understanding Chief Justice Roberts’ background provides hints to understanding how he views the Supreme Court’s role in the constitutional structure. Drawing upon her extensive review of his experiences from birth to the confirmation of Justice Brett Kavanaugh in 2018, Biskupic describes him as a highly pedigreed and privileged individual.
John Roberts has always operated in elite circles. His background includes an exclusive all-boys prep school, Harvard undergraduate and law degrees, law clerk on the United States Court of Appeals for the Second Circuit and then on the Supreme Court, an official in the Reagan administration, partner at an elite law firm, and judge on the D.C. Circuit Court of Appeals.
In Biskupic’s opinion, Roberts’s experiences have shaped his decision-making and his view of the role of the Supreme Court. Biskupic, who had unmatched access to the Supreme Court and the Chief Justice, argues that Roberts equates legitimacy with the institutions in which he has always operated.
Roberts Has Sought to Depoliticize the Court in the Era of Trump
In the biography’s last chapters, Biskupic keenly observes that since the 2018 retirement of Justice Kennedy, Roberts has sought to solidify the Supreme Court’s legitimacy. He has done so by aligning the Court with prevailing public opinion, the tide of judicial rulings issued by the majority of appellate level courts, and the opinion common in elite legal circles.
Based on Biskupic’s observations of Roberts’s prior voting record and his background, his most recent votes in the DACA, Louisiana abortion, and LGBTQ employment discrimination cases were entirely predictable. While upsetting to grassroots conservative activists and his conservative peers on the Court, Justice Roberts’s votes reached a result largely agreeable to those who dwell in the environment that produced him.
According to Biskupic, Roberts has tried to keep the public from viewing the Supreme Court as a politicalized body composed of four Democrats and five Republicans in black robes. To avoid that, in some of the more socially controversial cases, he seeks to cross ideological lines or forge unlikely coalitions with Justices viewed as his ideological opposites, as he did when he cast the decisive vote in the 2012 Supreme Court ruling upholding the legality of the Affordable Care Act’s (ACA) individual mandate.
Roberts Has Often Crafted Opinions That Have Confused Legal Commentators
While reaching results that did not upset majoritarian views on certain legal issues, Chief Justice Roberts has often crafted opinions that have confused legal commentators from across the political spectrum. Some have unfairly viewed his decisions as cynical attempts at “splitting the baby.” Specifically, these commentators have accused Roberts of being more focused on how the public will view the Supreme Court and its decisions — as well as bolstering his personal reputation as a modern-day Solomon — rather than being wedded to a consistent conservative constitutional interpretative method.
While upsetting President Trump and some conservative commentators, Roberts’s decisions in the three recent cases in which he sided with the four liberals did not go against the tide of prevailing legal opinion. Moreover, these decisions were in line with his prior pattern in other high-profile cases such as his vote to affirm the individual mandate in ACA case in 2012. However, Roberts’s attempts to depoliticize the Court by voting along with his liberal colleagues, while laudable, may have unintended consequences.
Roberts’ Rulings and Likely Unintended Consequences
In narrowly crafted decisions, written to fully please neither conservatives nor liberals, Roberts’ decisions have also drawn many outside commentators’ attention. Biskupic claims to have identified a seemingly recurring trend in his decision-making in high-profile cases that conflicts with his prior public statements about the judges’ role. He famously stated during his 2005 Senate confirmation hearings that a Justice on the Supreme Court should act as an umpire who merely calls balls and strikes and does not pitch or bat.
However, Biskupic portrays the Chief Justice as a cunning strategic operator who carefully weighs the potential impact of his votes. Thus, rather than being a detached umpire, Biskupic paints a picture of a man focused not only on his public image, but also on how the Supreme Court’s decisions will shape perceptions among the legal community and the public alike.
According to some Court commentators, Roberts closely monitors the political and legal landscape and the public’s likely reception of each Supreme Court decision. Then he crafts his decisions to avoid public controversy by going along with the majority of public opinion. Even if not true, the growing perception of the Chief Justice’s motivations, as alluded to by Biskupic, could undermine the very legitimacy that he seeks to strengthen.
While Roberts seeks to bolster the public legitimacy of the Court, he also is the first among equals. As such, he must carefully navigate his relationships with his eight colleagues. His votes in highly politicized cases, like the three recent cases discussed in this article, have also tended to alienate his colleagues on both sides of the ideological spectrum.
Commentators like David Faris of The Week say Chief Justice Roberts is positioning the Supreme Court for a Biden presidency. Such speculation, common in the press, shows a growing perception that public opinion and the political landscape affect the Chief Justice’s decisions. Even if not accurate, this growing perception does little to bolster the Court’s institutional legitimacy as an apolitical body.
Over the next months, both major presidential candidates are likely to focus on the Supreme Court’s importance, given the rumors of several potential retirements. Partisans of all varieties expect that a future president will likely appoint several Associate Justices, with the potential to shift the balance of the Court in a decisive ideological direction.
Thus, rather than depoliticizing the Court, Chief Justice Roberts’ attempts at Solomonic decision-making over the past two terms may have paradoxically mobilized activists from all sides of the ideological spectrum who are unsatisfied with his attempts to straddle the ideological divide. These partisans will likely seek appointments to the Court who advance their ideological goals and who are unsatisfied by the Chief Justice’s attempts at judicial compromise and temperance.
Supreme Court Appointees Will Likely Be Viewed as Reliable and Predictable Votes
Regardless of who wins the 2020 Presidential election, future Supreme Court appointees will likely be viewed as extremely reliable and predictable votes on certain legal positions, including the most contentious issues on the Supreme Court’s docket; These would include abortion rights and religious rights issues. The likely confirmation of such future Justices will reinforce existing ideological divisions or swing the Court into a decisive ideological direction. Therefore, Chief Justice Roberts’s hopes of a non-politicalized Supreme Court and his deliberate actions to cast the body in such light may ironically contribute to its further politicization over the next four years.
About the Author: James Barney is a Professor of Legal Studies at American Military University. James is also in the process of completing his Ph.D. in History at The University of Memphis where he is writing his dissertation on New York City politics in the 1980s and 1990s. Currently, he is working on a multi-year-long research project that focuses on Justice Kavanaugh’s impact on the Supreme Court.
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