With two new conservative justices now sitting on the Supreme Court in as many years, chief justice John Roberts has a new, delicate task before him.
The conservative judge is fighting complaints of partisanship from the left since the high court shifted to the right under President Donald Trump, and the pressure is forcing him to skew left, according to a new report from the New York Times that congratulated his shift.
NYT lauds Roberts for holding center
Since Anthony Kennedy’s retirement from the court and replacement by Justice Brett Kavanaugh, Roberts was expected to become the ideological fulcrum point of the court, and he seems to be living up to that expectation, according to the Times, which approved of Roberts’ reluctance to pursue a conservative agenda. Roberts isn’t taking advantage of a new five-vote majority, the paper writes.
In significant decisions since the court’s new term began, Roberts has appeared to skew more liberal to keep up appearances of independence, voting to reject President Trump’s asylum ban last week and siding with liberal justices earlier this month in deciding to not take up a Planned Parenthood case, provoking the ire of Justice Clarence Thomas.
The pressure for Roberts to skew left was evident last month when President Trump fumed against a so-called “Obama judge” who overruled his asylum ban. Trump’s remark prompted Roberts to intervene and re-assure the public that the judiciary was independent, which convinced very few conservatives outside his idealized bubble but earned many plaudits from leftists, who patted him on the shoulders for upholding the “integrity” (leftism) of the court.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said at the time.
The article paints Roberts as a maverick tasked with the noble job of pushing back against a far-right coup, musing on his place in history and the guidance of predecessors who pushed back against the court-packing FDR. The Times article warns of the “danger” of a Supreme Court controlled by conservatives rather than liberals like the left is used to, and cited a law expert who suggested that Roberts is pursuing a “slow and steady wins the race” strategy to achieve who knows what.
Controlling the pace of change on a court whose conservative wing is eager to move fast will be the central problem of the next phase of Chief Justice Roberts’s tenure, said Daniel Epps, a law professor at Washington University in St. Louis.
“If he’s smart, and he is, what he’s probably thinking is, ‘I do have a substantive agenda of things I want to accomplish. But it’s a lot easier to do that when the court retains its legitimacy. Let’s do as much as we can get away with, but maybe that’s a little less than some of my colleagues to my right think we can get away with,’” Professor Epps said.
Roberts has repeatedly emphasized the court’s independence and, unlike his conservative colleagues, avoided an annual gala at the conservative Federalist Society this year, the Times noted. Like many conservatives in government, Roberts is under mounting pressure to apologize for his and other conservatives’ views.
“We do not sit on opposite sides of an aisle,” he said in a speech at the University of Minnesota in October. “We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation.”
Patiently waiting or becoming liberal?
In times of such partisan division, Roberts is likely fighting a pitched battle. But the sudden pressure on Roberts also raises the question of why partisanship is only a problem on the Supreme Court now that it’s in the hands of conservatives.
Ever since Kennedy announced his retirement, setting off fears of an incoming conservative majority, the left has reversed it’s long-held stance on the Supreme Court. As Newsbusters’ Clay Waters noted, the Times’s hand-wringing about the “danger” of Roberts turning right rings hollow given the left’s long-time view of the court as a political tool.
But all of that new power comes at a dangerous time for the court, whose legitimacy depends on the public perception that it is not a partisan institution. “We don’t work as Democrats or Republicans,” Chief Justice Roberts said in 2016, and he reiterated that position in an extraordinary rebuke of President Trump last month.
Even if he wants to avoid major controversies for now, his more conservative colleagues may not let him.
This sudden concern only comes after the left spent decades forcing abortion and gay marriage on the nation through judicial decree. Now, all of a sudden, the left is whipping up a frenzy of fear about conservative judicial activism and partisanship.
The left’s fear-mongering about the legitimacy of the court is also ironic since the left is itself calling the court’s legitimacy into question simply because people they don’t like now control it. The left has, of course, also challenged the legitimacy of institutions ranging from the electoral college to the Senate on the same grounds, so their newfound reverence for institutional process is shallow as a puddle.
To pretend that judges have no political philosophy of their own is unrealistic. For the left, justices having their own opinions is only a problem when the judge in question is a conservative. It remains to be seen whether Roberts will handle his new role as swing judge with fairness for his conservative colleagues, or interpret “moderation” to mean siding with the liberals every time.