October 28, 2020

Which Way Will John Roberts Move?

Faced with a 6-3 Supreme Court, the chief justice must decide whether he wants to remain relevant.

John Roberts has a decision to make: right or left?

Roberts, our nation’s chief justice, now presides over a 6-3 sort-of-conservative Supreme Court majority, having administered the judicial oath to Judge — make that Justice — Amy Coney Barrett on Tuesday.

The Court’s liberal wing now has just three justices: Stephen Breyer, Sonia Sotomayor, and Elena Kagan. By themselves, these three are powerless to decide cases. But for a time, they, along with their fellow liberal justice, the now-deceased Ruth Bader Ginsburg, were able to cobble together a majority in numerous high-profile cases by virtue of Chief Justice Roberts’s willingness to move leftward and join them.

Constitutional conservatives were disappointed to say the least, because they’d seen this movie before. Since 1970, Republican presidents have appointed a whopping 15 of our nation’s 19 Supreme Court justices. The only ones appointed by Democrats during the past half-century? Ginsburg, Breyer, Sotomayor, and Kagan. That’s it. Heck, if one counts Nixon appointee and Roe v. Wade majority opinion author Harry Blackmun, Ford appointee and Second Amendment opponent John Paul Stevens, Reagan centrists Sandra Day O'Connor and Anthony Kennedy, George H.W. Bush disaster David Souter, and now Roberts, Republican presidents have appointed more liberal justices than Jimmy Carter, Bill Clinton, and Barack Obama combined.

And for those Democrats inclined to whine about this being Donald Trump’s third nominee in a single term, consider this: William Howard Taft seated five justices in a single term, and Warren Harding seated four in just two years before dying in office.

Regarding the leftward swing of Roberts in recent years, even Vice President Mike Pence, the most gentlemanly of Christian gentlemen, has seen enough. “We have great respect for the institution of the Supreme Court of the United States,” Pence said in August, “but Chief Justice John Roberts has been a disappointment to conservatives, whether it be the ObamaCare decision or whether it be a spate of recent decisions all the way through Calvary Chapel.”

Why Roberts did this, it’s hard to say, but maybe he’ll write a book one day. Conventional wisdom is that he feels an obligation as chief justice — a duty, even — to protect the reputation of the Court by ensuring that his side doesn’t run roughshod over the other. As of yet, though, we’re unable to lay our finger upon that section and clause within Article III that addresses roughshod running.

Another theory is that Roberts simply hates Donald Trump, and that he can’t pass up an opportunity to poke a stick in the president’s eye. This would explain the idiotic opinion he authored to preserve Barack Obama’s unconstitutional DACA diktat, as well as his 2019 decision against adding a simple and helpful citizenship question to the Census. But what about siding against a Nevada church and in favor of COVID restrictions? What about his overreach on workplace discrimination laws, and his striking down of a Louisiana law that put modest restrictions on abortion providers?

Still another theory is that the chief justice has an acute case of Swamp Fever and he’s gotten too used to being a darling of the Beltway cocktail scene. Perhaps it’s a bit of all of these.

In any case, the days of Roberts meaningfully siding with the Court’s liberal wing are over. He’s no longer the swing vote, no longer the new Anthony Kennedy. And that’s a good thing for those who love and respect our Constitution.

And so, Mr. Chief Justice: right or left? Let’s hope he isn’t listening to lefty columnist Dana Milbank of The Washington Post. “Whether the court regains its independence or cements itself as a third partisan branch of government is now largely up to Chief Justice John Roberts,” opined Milbank. “If he does not act, and fast, to mitigate the court’s politicization, Democrats will be fully justified in expanding the court’s membership to restore balance — and indeed will face a public outcry if they don’t.”

This is court-packing blackmail, of course, but Milbank doesn’t care. In fact, he goes on to suggest how Roberts can rescue his Court from its five duly seated conservative justices. First, he says, Barrett must recuse herself from any cases arising out of the election. Then the Court must uphold ObamaCare and put an end to all those pesky constitutional challenges to it. It must side with same-sex couples and against Catholic Social Services in an upcoming adoption case. Milbank had some additional demands, but we’ll stop there.

Our Harold Hutchison is more of a realist than Milbank, and he suggests that the new 6-3 Court may actually pull Roberts back to the right. How? By appealing to his desire to either write majority opinions or assign them, which he can do only when he’s part of the majority. So there’s hope.

Speaking of hope, in 1990, long before he ascended to the High Court, John Roberts wrote a brief on Roe v. Wade that stated, “The court’s conclusion in Roe that there is a fundamental right to an abortion … finds no support in the text, structure or history of the Constitution.”

Would it be too much trouble to ask for that John Roberts to reappear?

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