Quo Vadis, John Roberts?
or why the Right should be upset about the Chief Justice
Amidst all the anger, distress, and shock over the leaked Alito draft opinion overturning Roe v Wade, two storylines have been lost.
First, Chief Justice Roberts is not part of that majority opinion.
Second, the view that there is a 6-3 conservative majority on the court is somewhat inaccurate — Roberts has moved to the middle and will likely join with the Court’s liberals regularly. It’s a 5-4 conservative majority Court — which is still bad just not as bad as 6-3.
While the Right was deciding it needed to hammer the leaker as if the draft opinion was a state secret, the Left was apoplectic and aghast over losing a nearly 50 year old precedent to Mitch McConnell’s court packing agenda. Neither have asked why Roberts was the one complaining about the leak. (One would think Justice Alito, at least, would be openly upset.)
The answer is fairly easy. Chief Justice Roberts was trying to convince his conservative colleagues that ending a constitutional right was going to cost the Court public confidence and respect for its ruling.
Now, the end of Roe is untweakable, cannot be undone, and is unlikely to be pared down from some of its dicta on other privacy cases. And the fact that Alito, Gorsuch, Kavanaugh, and Barrett all swore under oath that Roe was settled law means that nihilists, even ones in robes, will do anything for power.
The Chief Justice’s investigation into who leaked the Alito draft will likely go as well as the ethics complaints against Brett Kavanaugh1 or Clarence Thomas’ myriad of ethics and conflict of interest problems2.
John Roberts, who came onto the Court as Chief Justice when William Rehnquist died although he was originally nominated to fill the seat of retiring Justice Sandra Day O’Connor, has become a frequent critic of his fellow Federalist Society brethren on the Court for opening the door to advisory opinions3 and for abusing the shadow docket to issue decisionless rulings4.
Alito, Gorsuch, Kavannaugh, and Barrett have come to the Court with an agenda despite their confirmation assurances of stare decisis and respect for precedents. With Thomas (and his wife) along for the ride, the Chief Justice has little power over the Court now.
It wouldn’t matter if he did — Roberts is a classic institutionalist. Part idealist. Part pragmatist. The majority on the Supreme Court and most of the federal judges appointed by Donald Trump are nihilists and judicial activists for the Right.
Quo Vadis?
Well Roberts could hold fast to the middle, but more likely than not his leftward drift will continue and he will align himself with the Court’s liberal wing more often than not. And his every “liberal” opinion is going to raise hackles on the Right and any “conservative” opinions he might support will let loose dander on the Left.
He could also retire and let Joe Biden appoint a Chief Justice — which would be amazing as the last Democrat to do so was Harry Truman.
When there are no ethical lines nor legal limits on what a majority on the Court is willing to do for the Right, the job of Chief Justice is little more than cat herding.
https://www.npr.org/2018/12/18/678004085/federal-panel-of-judges-dismiss-all-83-ethics-complaints-against-brett-kavanaugh
https://www.warren.senate.gov/oversight/letters/after-new-revelations-of-ginni-thomass-efforts-to-overturn-the-2020-election-warren-and-jayapal-lead-22-colleagues-in-bicameral-letter-demanding-explanation-from-justice-clarence-thomas-on-failure-to-recuse-from-key-supreme-court-decisions-and-seeking-future-recusals
https://www.npr.org/2021/03/08/974800755/roberts-accuses-supreme-court-justices-of-turning-judges-into-advice-columnists
https://www.reuters.com/legal/government/justice-roberts-criticism-shadow-docket-underscores-problem-2022-04-08/