Chief Justice John Roberts straddles Supreme Court’s left and right
Published 5:00 AM EDT Sep 25, 2019
NEW YORK – After 14 years as chief justice of the United States, John Roberts faces what must seem like a double dose of the seven-year itch.
As his Supreme Court prepares for a contentious term featuring cases on immigration, gay and lesbian rights, gun ownership and, in all likelihood, abortion, Roberts can look forward to opposition from the left and distrust from the right.
A buttoned-down conformist who fights to preserve his court’s reputation, he must referee continual battles between lower court judges blocking Trump administration initiatives and a Justice Department seeking the high court’s intervention to stop them.
A go-slow incrementalist who tries to move the law in baby steps by consensus, he is pushed by conservatives eager to jettison the court’s precedents. When he deviates from their path, he is exposed by highly unusual leaks to the media.
All this comes on the eve of a presidential election in which the Roberts Court may play an outsized role, much to the chief justice’s consternation.
And on top of all that, if the House of Representatives impeaches President Donald Trump, it is Roberts who would preside over the trial in the Senate.
More: House Democrats will launch an impeachment inquiry. Here’s what we know so far
The chief justice was in Manhattan Tuesday night addressing some 2,000 people at Temple Emanu-el Streicker Center, where he professed not to be influenced by recent criticisms from the president and Senate Democrats.
“It does not affect how we do our work. We will continue to decide cases according to the Constitution and laws without fear or favor,” Roberts said. “That’s necessary to avoid the politicization of the court.”
More: Chief Justice John Roberts inherits expanded role as the Supreme Court’s man in the middle
“He’s in between a rock and a hard place,” says Allison Orr Larsen, a professor at William & Mary Law School. “He’s desperate to keep the court out of the political fray. He wants to further the message that there are no Obama judges or Trump judges, Bush judges or Clinton judges. But at the same time, the court is at a very politically charged moment.”
Roberts’ 15th term as chief justice will be his first with a decisively conservative majority – that is, if Roberts himself sticks to his conservative roots. Associate Justice Brett Kavanaugh succeeded retired Associate Justice Anthony Kennedy, the court’s swing vote, less than a year ago. Now the conservative legal establishment wants results.
But the chief justice is not a “movement” conservative. He came to the court in 2005 as an umpire vowing to call balls and strikes. He sought to get the justices speaking in unison, rather than in fractured opinions, dissents and concurrences.
“The more justices that can agree on a particular decision, the more likely it is to be decided on a narrow basis,” he said during his 2005 Senate confirmation hearing. “I think that’s a good thing when you’re talking about the development of the law – that you proceed as cautiously as possible.”
He has been only somewhat successful in that regard. The year before he arrived, the justices wrote 125 separate dissents and concurrences. Last term, they wrote 95 – the average during his 14 terms.
Storm brewing below
But as Roberts tries to control his own court, a storm has brewed in federal district and circuit courts, where judges sitting in one part of the country regularly block Trump administration initiatives nationwide. President Donald Trump, Vice President Mike Pence and two attorneys general have blasted the practice, to no avail.
To combat that trend, Solicitor General Noel Francisco’s office routinely asks the justices to reverse lower court rulings before formal appeals have run their course – a departure from the regular order Roberts prizes. That has forced the justices essentially to choose sides before they’ve read all the briefs or heard oral arguments.
“This term, the chief justice faces challenges of a truly extraordinary size and scope,” says Joshua Matz, an appellate lawyer and publisher of the legal blog Take Care. “What we’re seeing is an increased perception on the part of the solicitor general’s office that the Roberts court is a willing ally rather than a neutral arbiter in the Trump administration’s legal agenda.”
Several times in the past year alone, the court has bailed out the Trump administration after lower court judges stood in the way. Earlier this month, the justices overruled lower courts and permitted an asylum ban against migrants at the southern border who do not seek protection first from a country they traverse.
In July, the court allowed the administration to use $2.5 billion in military funding to begin building a portion of the president’s long-sought wall along the nation’s southern border. Earlier in the year, it allowed a partial ban on transgender people serving in the military to take effect while court challenges continued.
In each of those cases, Roberts joined the court’s other conservatives in giving the Trump administration what it wanted. But the chief justice also has switched sides.
In February, he joined the four liberal justices in temporarily blocking abortion restrictions in Louisiana that critics complained were virtually identical to those struck down by the justices in 2016. Last December, he sided with the liberals again in an earlier administration effort to deny asylum seekers at the border.
And in June, Roberts joined the liberals to block the administration’s plan to add a citizenship question to the 2020 census. CNN later reported that the chief justice switched his vote during deliberations, as he reportedly did in 2012 to uphold President Barack Obama’s Affordable Care Act.
But asked Tuesday night by Rabbi Mark Lipson, a personal friend who moderated the Temple Emanu-el event, if the justices ever horsetrade when deciding cases, Roberts responded curtly: “No.”
Gays, guns, immigration, abortion
If the battle over nationwide injunctions issued by lower courts isn’t enough to worry Roberts, the court’s regular docket this term provides more than enough fodder.
In October, the justices will face a central civil rights question: Does a federal law banning sex discrimination in the workplace incorporate sexual orientation and gender identity? Their decision will affect millions of gay, lesbian, bisexual and transgender individuals.
In November, the court will face the Trump administration’s effort to end Obama’s program giving protection from deportation and work permits to nearly 800,000 undocumented immigrants brought to the United States as children.
In December, the justices are scheduled to hear a dispute over a New York City gun control regulation that since has been repealed, potentially rendering the case moot. Even if that case disappears, the Louisiana abortion dispute may reappear.
David Cole, national legal director of the American Civil Liberties Union, says the court was deft last term at rising above political disputes, but its luck may have run out.
“This term, it’s going to be harder for the court,” Cole says, citing “very hot-button, ideologically divided issues.”
Those issues will test how Roberts treats Republicans in the White House and Congress. His relationship with Trump was rocky from the start; the president called him “an absolute disaster” during the 2016 campaign “because he gave us Obamacare.” But over time, the chief justice has shown both his independence and his fidelity.
The cases and controversies already on Roberts’ plate ultimately may pale compared to what’s coming: Conflicts between the White House and Congress affecting the legislative branch’s oversight and subpoena powers.
Warns Matz: “Legal conflicts around the Trump administration are maturing and moving along in ways which will lead them to the Supreme Court in much greater frequency.”