This is Chief Justice Roberts’ court, but is he still ahead?
John Roberts leads a Supreme Court in crisis.
The Chief Justice has already ordered an investigation into the leak this week of a draft opinion suggesting the court may be on the verge of overturning Roe v. Wade, the 1973 case legalizing abortion nationwide. What comes next could further test Roberts’ leadership of a court where his vote already seems less crucial in determining the outcome of contentious cases.
“This is a time when the court is under siege, both outside and inside now,” said Todd Peppers, a professor at Roanoke College, who writes about the court. “I just don’t think the spotlight has ever been brighter on the pitch in recent history.”
Roberts’ court faced challenges even before the leak, which the chief called “a betrayal of court confidences.” Polls showed a noticeable drop in public approval of the tribunal. And there have recently been calls for judicial term limits and more judges as well as a code of ethics, particularly following reports that Justice Clarence’s wife Thomas, Virginia, implored Donald Trump’s White House chief of staff to take action. overturn the results of the 2020 presidential election. Confirmation hearings for the court’s new judges have been contentious.
The addition of three conservative justices during Trump’s presidency also means that there are now five conservative justices to Roberts’ right who no longer need his vote, and perhaps his moderating influence, for the take away in a case. The abortion ruling could be another example, with other conservatives on the court willing to go further than Roberts.
Roberts, 67, noted the limitations of his position in the past. Asked during a 2018 appearance about the difference of being a chef, Roberts replied, “In many ways it is different. Most importantly, this is not the case. I have a voice. I participate in the court’s decision-making like any associate judge.
Yet there is a reason the Chief is called the “first among equals” and why historians refer to periods of time in court using the Chief Justice’s name: the Marshall Court, the Rehnquist Court , the Roberts Court. The leader is the first to speak when the judges discuss cases in their private conference and guides this discussion. The leader decides who writes the opinion of the court when the leader has a majority.
Roberts, an appointee of President George W. Bush, faced other difficult times during his 16 years as leader. He led the court in contentious cases on same-sex marriage, President Barack Obama’s health care law and Trump-era policies, including the construction of a wall on the US-Mexico border and the travel ban.
In 2020, Roberts was in the spotlight presiding over Trump’s first impeachment trial, although his role was modest. At the start of the coronavirus pandemic, he led the court through a period when he decided to postpone oral arguments for the first time in more than 100 years and then conduct them by telephone for more than a year and a half.
Early in his tenure, in a speech at the Georgetown Law School graduation and elsewhere, Roberts explained his philosophy for guiding the court and his preference for decisions where there could be broad agreement on narrow patterns.
“There are clear benefits to a greater degree of consensus on the tribunal. Unanimity or near unanimity provides clarity and direction to lawyers and lower courts trying to understand what the Supreme Court meant,” he said in 2006. He added: “The rule of law is strengthened when there is more consistency and agreement on what the law is.”
Artemus Ward, a professor at Northern Illinois University and one of the editors of a scholarly research book on chief justices, said Roberts was “trying to build consensus, trying to govern narrowly.” But after the death of Justice Ruth Bader Ginsburg, a liberal, and her replacement by conservative Justice Amy Coney Barrett, “Roberts’ vote is less powerful” because there are five Conservative votes even without him, Ward said.
There has already been evidence of the impact of this.
Prior to Ginsburg’s death, Roberts joined the court’s four liberals in rejecting a challenge to California’s attendance limits on religious services due to the coronavirus pandemic. But about a month after Barrett joined the court, judges ruled 5-4 the other way in a case over similar limits in New York, with Roberts and the liberals at odds.
In September of last year, the court ruled 5-4 not to block a new Texas law banning most abortions in the state. The dissenters were once again Roberts and the three liberal justices.
It was the same lineup in February when the Supreme Court suspended a lower court ruling that Alabama had to draw new congressional districts before the 2022 election to increase black voting power. And in April, when the court reinstated a Trump-era water rule.
“Roberts lost control of the Supreme Court,” was the title of an article written that month by Professor Stephen I. Vladeck of the University of Texas School of Law.
It remains to be seen how divisive and drastic the court will be in other rulings, including a major gun ruling, which is yet to be delivered before the summer recess.
It’s also unclear to what extent the final opinion in the abortion case will reflect the leaked draft, which was written by Judge Samuel Alito and distributed to other members of the court in February. Politico reported that Alito had the votes of four other conservatives to overturn Roe v. Wade and a subsequent decision that reaffirmed a constitutional right to abortion services, Planned Parenthood v. Casey. The three liberals planned to dissent, Politico said, while Roberts’ final vote was unclear.