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Chief Justice Roberts Is Officially Irrelevant

Sept. 14, 2022, 2:33 PM

Chief Justice Roberts, I have a message from your former professor: You are no longer the star student.

“Having had both John Roberts and Elena Kagan as my brilliant students in constitutional law, and having watched each of their careers unfold, I can’t help thinking that one of them, Justice Kagan, has grown into her role as a wise jurist ...,” Harvard law professor Laurence Tribe said when I asked him about Roberts’ latest comment about the Supreme Court, and Kagan’s reaction to it.

On the other hand, “Chief Justice Roberts has dwindled in stature as his cliches have lost their power and even their relevance,” Tribe said.

At a judicial conference in Colorado late last week, Roberts tried to convince us that the Supreme Court still has “legitimacy,” despite the uproar over its radical decisions.

“The court has always decided controversial cases. The decisions have always been subject to intense criticism. And that is entirely appropriate,” Roberts said in his first public comment since the court overruled Roe v. Wade. “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”

He added, “If the court doesn’t retain its legitimate function of interpreting the Constitution, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is.”

Not buying Roberts’ spiel is Justice Kagan, who pointedly told an audience in New York Monday night, “Judges create legitimacy problems for themselves when they don’t act like courts,” and “when they instead stray into places that looks like they are an extension of the political process or where they are imposing their own personal preferences.”

Kagan called out what’s plain to many Americans: The current Supreme Court has never been more political. And to suggest, as Roberts wistfully did, that the court is above the political fray is laughable, disingenuous, and arguably insulting.

‘Just Calling Balls and Strikes’

It’s embarrassingly obvious that recent decisions rendered by the conservative supermajority hew to a certain political agenda. Oh, where does one start? I guess Dobbs was a biggie because it destroyed almost 50 years of reproductive rights for women.

Then, there’s the decision that crippled New York’s gun-control law and the one that severely cut back climate change regulations. And let’s not forget how the court keeps siding with religion, as if the separation of church and state is an optional part of the Constitution.

That the Supreme Court lurched so far to the right in less than a year is breathtaking. It’s like we’re suddenly transported to a country where Wayne LaPierre, Christian fundamentalists, corporate polluters, and the ghost of Phyllis Schlafly are calling the shots.

Given the radical shift in the court—thanks to Donald Trump’s luck in being able to appoint three uber-right justices and Mitch McConnell’s brilliant shepherding of the process—it strains credulity that Roberts buys the idea that the court has the simple “mantle” of “interpreting the Constitution.”

No doubt, Roberts is genuinely pained by the public’s lack of trust in the court. (According to Pew Research Center, those who hold a favorable view of the court dropped from 70% in 2020 to 48% now.)

But why is he suggesting that the problem lies with our lack of faith in the high court, instead of asking whether that institution is still worthy of respect?

It could be that Roberts doesn’t want to probe too deeply because that would entail taking his colleagues and the institution to task. As Dahlia Lithwick writes in Slate, Roberts has done nothing to curb some notable abuses, such as the court’s “‘shadow docket’ to create new law that is not properly explained or applied; the wildly unethical behavior of his colleagues, ranging from Ginni Thomas’ improper involvement in efforts to bend abortion to the partisan speeches that make the justices sound like partisan hacks and the nonexistent ethics rules that allow his colleagues to do all this with impunity.”

As deeply as Roberts cares for the institution of the Supreme Court, going out on a limb to fix it doesn’t seem his style. And that unwillingness or inability to “disturb the universe” is what makes him a rather sad Prufrockian figure.

Outright courage might have been too much to ask, yet I expected better. I thought Roberts would have something more vital, at least a bit more honest, to say, rather than the usual drivel about how the court should be revered.

“I’m afraid Roberts has run his metaphors into the ground, now that the fig leaf of his well-worn umpire image, just calling balls and strikes, has run its course,” Tribe said.

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com. Twitter: @viviachen
To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com