Chief Justice John G Roberts Jr is smart, crafty and funny His mastery as a DC appellate lawyer – the best of his time, complaining 39 times in court – has led admirers to say his middle initial represented God (Alas, that’s « Glover ») His decisions in controversial cases – including when he was the decisive vote in 2012 to support Obamacare – play the long game, planting the seeds for more big conservative triumphs his opponents don’t realize now Just weeks after being confirmed in 2005, when a light bulb exploded in the courtroom during the argument, he joked: « It’s a thing they’re playing all the time on the new chief justices! » But for all of his talents, few at court profess to actually know him. Although he’ll be chatting with his colleagues over last night’s game lunch, that’s about all anyone learns about what’s to come. inside
So it was amazing several years ago that Roberts let his guard down. Clerks took him to lunch a few blocks from the building On the promenade there, to have little conversations, one of them asked: « How do you like the job? » Instead of pablum like, « This is the privilege of a lifetime » he showed his true personality Roberts reminded clerks that there had only been 16 chefs before him Of course he was delighted to be no 17 But Roberts understood the history of the Court Even among the chiefs, he said, there had been only one John Marshall, who served for 34 years in the early 19th century Marshall wrote the Seminal Marbury v Madison who established the authority of the Court over the other branches – a role which the text of the Constitution itself hardly manifested In the conference room of the Court, where appeals are decided and where only judges are allowed, Marshall’s portrait hung over the fireplace, looking directly at Roberts, who chaired the meetings Marshall « had the opportunity to decide the big questions because the Constitution was underdeveloped, » Roberts told clerks
Roberts was lucky Judge Anthony M Kennedy retired in 2018 and with Brett M Kavanaugh sworn in, Roberts became Mid-Justice Not exactly true « swing justice » which might suggest a fiery moderation He remained a staunch Conservative who came of age during Reagan’s time in court, however, in most contentious cases he happened to have four Liberal judges on one side and four Conservative judges on one side. the other He would be the most powerful chief justice since FDR’s tenure And he was still in his early sixties, the third youngest member of the court If he served until the age of 87 – the age to whom Judge Ruth Bader Ginsburg died in September – he would not reach half of his term until 2022 While Supreme Court eras are nominated by whoever sits in headquarters, the Roberts Court would really be and it was for two years, as he cast decisive votes in key areas such as gerrymandering, the abortion and religion
But Roberts’ luck may be exhausted With Ginsburg’s death and the rise of Amy Coney Barrett, the Chief Justice is no longer the midpoint Barrett will likely be the equal and the Newtonian opposite of Ginsburg Along with Kavanaugh and Judges Samuel A Alito Jr, Neil M Gorsuch and Clarence Thomas, she’ll be part of a strong five-vote Conservative bloc Yes, yes, you never know how a judge will vote, but, no, no, you should have little doubt This alliance could make rulings to overthrow Roe v Wade, strike down the Affordable Care Act, expand the rights of gun owners, allow claims of religious freedom to override allegations of discrimination , reconsider the right of same-sex couples to marry – and perhaps more importantly, declare the entire federal regulatory regime unconstitutional Judges have already made little noticeable progress on the last And one day, perhaps, Medicare will be in danger When asked during his confirmation hearings about the constitutionality of the 54-year-old federal program, Barrett refused to say Too « abstract », she protested. You never know if the court will ever be faced with the question, she said, which is true for any question, which is why she gave virtually no substantive answer – her strategy from the start
Barrett, along with Gorsuch and Kavanaugh, are surely accredited and knowledgeable, but that’s not why none of them were anointed by the conservative legal establishment and appointed by President Donald Trump All three were put in court to vote a certain way in critical cases – and in a way that makes the chief justice redundant
Don’t forget that the president has a particular animosity towards Roberts During the 2016 campaign, Trump regularly trashed the leader, which he called an ‘absolute disaster’ « He gave us Obamacare! We could you might as well call it RobertsCare! ”Trump shouted during one of the debates (Roberts hated it After hearing his name booed on TV at the GOP convention that year, he confided his outrage to a friend “I have been a reliable curator,” he complained “They don’t realize?”)
As president, Trump maintained the attacks, which broadened to criticism of federal judges in general Roberts ultimately responded in a very unusual statement to a PA reporter « We have no judges Obama or Trump, Judges Bush or Judges Clinton, « Roberts wrote » What we have is an extraordinary group of dedicated judges doing their best to do the same law as those appearing before them »(Never mind that on a growing number of issues we have Judges Trump and Judges Obama: look who has appointed a judge and you have a reliable gauge of how they will vote on a legal issue regarding, say, immigration)
With Barrett on board, the new mid-justice will likely be Kavanaugh More so than the fact that Roberts has been in the post for two years, the change reflects how far the court will move to the right with Barrett – and how fast the chance can transform the slowest and most stable branch of government When Roberts voted in June to protect Dreamers’ status under the Deferred Action for Childhood Arrivals (DACA) immigration program, Kavanaugh was on the other side Same thing three days later, when Roberts aligned with the Four Liberals to overturn a Louisiana law requiring doctors performing abortions to have admitting privileges to a nearby hospital two weeks later, when a A memorable term for the Court was drawing to a close, Roberts and Kavanaugh diverged over whether the Civil Rights Act of 1964, which prohibits gender discrimination, applied to gay and transgender workers Roberts said it did.And then in mid-October Roberts voted with the three remaining Liberals to allow Pennsylvania election officials to count some mailed ballots received after election day (His vote resulted in a 4-to-4 stalemate, which left a Pennsylvania Supreme Court ruling)
For Democrats and Liberals, the Barrett-for-Ginsburg swap and the rushed work that made it possible – in turn the production of Kavanaugh-for-Roberts – adds an injury to the insult of events of 2016 At the time, Republicans stood in the way of President Barack Obama Garland’s nomination of Merrick B for the seat Gorsuch ultimately took All of which is why expanding the size of the court has become a topic of discussion for so many democrats
Being a member of the Supreme Court is a great job – easy workload, best marble workplace in Washington, ultimate job security, all summer long. Being the boss is better, and being the leader is best when your vote rules What should John Roberts do now? The best guess is that he will eventually move to the right To begin with, he is less compelled to follow his conservative political instincts It was one thing to play the role of incrementalist and institutionalist when he could control the outcome of affairs and save the Court from the triumphalist instincts that Thomas and Alito display without shame It is useless, especially since it is a question of associating with the liberal wing with which he shares little ideology
Moreover, the path of continued importance is to join with the other five conservatives, not the remnants of the left It’s not just about being part of an ascending majority Traditionally, the leader, although he only obtains one of nine votes and may not have served the longest, is considered the most senior member of the Court So whenever he has a majority on a case, he decides who drafts the opinion This assignment privilege is seldom enjoyed by casual observers of the Court But the judge who drafts the main opinion can influence the direction of the court. constitutional law for years, with a subtle signal to future litigants here or a seemingly innocuous aside there Language counts Much of the power of William J Brennan Jr, the Liberal Lion of the Court from 1956 to 1990, stemming from his incomparable ability to form unexpected coalitions Although this has helped him to have a lot of liberal leanings with him for many of those years not everyone was always ready Brennan coaxed her not with the Irish charm that was often attributed to her – but with words
There is no one in the current court who is better in words than Roberts It is this ease that he demonstrated on horseback in the Obamacare 5-to-4 decision The Conservatives still blame him for being a ghost – but that says more about their obtuse than his betrayal In this ruling, Roberts was able to insert wording on the mastery of the powers of Congress in general (but not in this case) than a future court conservative will thank him for During the many months of producing opinions, coalitions form, dissolve and reform In the Obamacare affair, Roberts himself moved from camp to camp, eventually siding with the Liberals Since Roberts is now part of a group of six Conservatives – keep in mind that it only takes five to command a majority – he will find that there is little he can do. by attributing to himself the opinions of the majority Others may be reluctant if he refuses to overturn some Liberal precedents or tries to play the institutionalist card Others can do it because they don’t need his vote But only fools would underestimate Roberts’ ability to recalibrate
Other judges might not care Antonin Scalia, for his part, showed little interest in winning allies It was more satisfying – and easier – to write concisely, to have of the mind, of taking pictures Everyone loves a character On the left, William O Douglas, from 1939 to 1975, was the same way – the darling of the sidekicks, with little influence beyond and there is some judges in American history who have gained influence as « great dissidents » What influence that John Marshall Harlan (1877-1911) or Oliver Wendell Holmes Jr (1902-1932) failed to gain by defending the civil liberties in their time which they won in posterity (Ginsburg was called the great dissenter of her time, but she had many majority opinions and her instinct favored consensus; though the Court has a shrill voice in the minority , it’s Sonia Sotomayor)
Anyone who knows Roberts knows he has little interest in being a lone wolf or just being part of the pack.He is recognized as an institutionalist because he loves the Court – its history, its purpose in constitutional design , his mystery and his majesty These are as crucial to him as his dual political agenda, the deregulation of political campaigns and the eradication of racial preferences But his institutionalism is also rooted in the love of the role of the leader In his cunning way, he does not let anyone forget it
Think of Elena Kagan’s investiture in 2010 It is the ceremony in the courtroom in which a new justice is officially installed It takes less than 10 minutes, but with the dignitaries and the family there , that’s a big deal The new judge, seated downstairs in a chair used by Marshall, hears a few fine words and then takes the bench Roberts acknowledged Kagan as « the 101st Associate Justice of the Supreme Court of the States- United « It was true enough, but it was not like that before The previous year Sotomayor was the » 111th justice « , without the » associate « Kagan should have been 112th Roberts changed the scenario by subtracting the chiefs who had not previously been associate judge (Five had) Now there would be one count for the associate and another for Chief Kagan noticed Just like the other judges They each knew their numbers the way each president knows his Why a leader who reveres the traditions of Will court disturb my number?
Because it made his rank more exclusive Idiot? Sure Vain? A little bit but that tells you something about Roberts, who has two bobbleheads in his bedroom, one from Abraham Lincoln and the other from himself The current leader, with a long reign yet to come but his court taking a sharp turn to the right, probably will not tolerate uselessness
David A Kaplan, former Newsweek legal editor, is the author of The Most Dangerous Branch: Inside the Supreme Court in the Age of Trump (Crown, 2018), some of which are adapted from His other books include The Accidental President (William Morrow, 2001) He teaches journalism and law at NYU and CUNY
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Amy Coney Barrett, John Roberts, United States Supreme Court, United States Senate, Donald Trump, Brett Kavanaugh, Ruth Bader Ginsburg, Clarence Thomas, Neil Gorsuch
News World – United States – With Amy Coney Barrett Confirmed, Does John Roberts Still Matter?
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