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Roberts Will Struggle to Hold Center as Court’s Makeup Shifts

Sept. 23, 2020, 8:01 AM

Chief Justice John Roberts’ efforts to rein in his conservative colleagues and slow walk major changes in U.S. law will be more difficult after the death of Justice Ruth Bader Ginsburg.

Roberts, 65, begins his 16th term leading the court on Oct. 5, and has recently emerged as its ideological center. Mostly voting with conservatives, he has sometimes crossed over to vote with his liberal colleagues and at other times restrained his fellow Republican-appointed justices, creating narrow rulings that avoided sweeping legal proclamations.

But without the liberal icon, conservatives will hold a two-seat majority when oral arguments start and a three-seat cushion once a new justice is seated, barring unforeseen developments. The court’s new composition will make it harder for Roberts to strike a balance between competing factions.

“By removing one of the members of the liberal coalition, you now to some degree deprive the chief justice of the ability to sand off some of the rougher edges of the conservative coalition,” said Washington University law professor Dan Epps.

His quest to guard the Supreme Court’s reputation and keep it out of politics will also be challenged by the convergence of electoral and confirmation politics triggered by Ginsburg’s death from cancer complications on Sept. 18 at 87 after 27 years on the court.

And the tools Roberts normally uses to shape the direction of the court—blocking risky or politically charged cases from being heard, assigning himself opinions, and threatening to or actually switching sides—are all blunted on a 6-3 court.

Threading the Needle

While Roberts stands in the middle, he’s mostly done so at key moments.

“The chief justice is more conservative than his public persona suggests,” said University of Minnesota political science and law professor Timothy Johnson.

For instance, he’s near the top third of the most conservative justices to have served since 1937, according to the Martin-Quinn score of the ideological court leanings.

But his role as chief justice of the United States and his vision of an apolitical Supreme Court can lead him to tame conservative impulses, Johnson said.

Commentators going back to the founders have recognized that the court must rely on its reputation in order to be an effective branch of government. The Supreme Court has “neither FORCE nor WILL, but merely judgment,” Alexander Hamilton wrote of the judiciary.

Roberts’ institutional concerns were on display during the 2019 term, Common Cause attorney Sylvia Albert said.

He was the justice most often in the majority, landing there in 96% of the court’s decided cases and in all but one of the 5-4 or equivalent decisions, a Bloomberg Law analysis shows.

“Roberts really tried to thread the needle between the conservative and liberal sides of the bench,” Albert said.

The most obvious example was his vote in an abortion case from Louisiana. June Medical Services v. Russo challenged a rule requiring admitting privileges at nearby hospitals for abortion doctors.

The court struck down a similar Texas law in 2016, and Roberts was in the dissent. Subsequently, retiring Justice Anthony Kennedy was replaced by the more conservative Brett Kavanaugh, and by the time the court announced a 5-4 ruling in the Louisiana case in June, Roberts had switched sides.

He didn’t agree with the ruling, but that was now the law. “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote.

Court watchers looking to make sense of the controversial stance speculated that Roberts didn’t want to give the impression that justice depended on who happened to be sitting on the bench at the time the case reached the Supreme Court.

A strong backlash followed from conservatives, still reeling from Roberts’ vote in an immigration case to quash the Trump administration’s efforts to undo protections for so called “Dreamers” and to expand federal antidiscrimination protections for LGBT workers.

“Americans hoping for justice for women and unborn babies were let down again today by John Roberts,” Tom Cotton (R-Ark.) said in a statement. “The Chief Justice may believe that he’s protecting the institutional integrity of the Court, but in reality his politicized decision-making only undermines it.”

The pressure to finally overturn Roe v. Wade, the ruling that first recognized a right to abortion, will only increase with a firm conservative majority, as well as the push for a strong executive branch, should Trump win reelection.

New Strategic Calculus

As the court prepares to start its new term, Johnson said it’s important to watch how Roberts balances his role as chief justice with his role as a justice—often the swing or deciding one. He’ll start with eight justices in October, creating a potential scenario of deadlocked decisions that could complicate last-minute election-related challenges and potentially lead to further delay in cases already postponed due to the pandemic.

“Roberts isn’t going to abandon his minimalist tendencies,” said Case Western constitutional law professor Jonathan Adler, referring to the chief’s inclination to “go slow” when making major changes in law.

But an “empty seat will likely alter the strategic calculus,” said Matthew E.K. Hall, a Notre Dame professor of political science and law.

To see how that might play out, court watchers need only look to 2016, said Goodwin’s William Jay, who has argued 17 times at the high court.

Senate Republicans kept Justice Antonin Scalia’s seat open following his death for more than a year before it was filled by Trump’s first nominee, Neil Gorsuch.

Roberts during the shorthanded period seemed to try to minimize the number of evenly split decisions by compromising with his colleagues to craft narrow rulings, Jay said. A 4-4 decision leaves the lower court’s ruling in place and leaves the Supreme Court out of the equation.

“I suspect it was important to the chief justice that the public see the court function and able to conduct its business,” Jay said.

He pointed to a case that he was involved in, Bank of America v. Miami, when Roberts joined his four liberal colleagues in ruling on a more procedural issue but sent the broader, “mushier” legal question back to the lower court.

Religious v. LGBT Rights

There are several ways Roberts could play a similar role during the period of eight justices and then once a ninth is seated. The name emerging as the front runners to fill that seat are two Trump appointees to the federal bench, Amy Coney Barrett and Barbara Lagoa. The president said he plans to announce his selection on Sept. 26.

First, he could attempt to stop the court from hearing controversial issues in the first place, Johnson said. The catch is that it only takes four justices to agree to hear a dispute, and the first opportunity to do this is Sept. 29 when they convene to review petitions piled up over the summer.

That means Roberts’ attempts to sidestep a case will be futile if the other four conservatives want to hear the matter. About half of the court’s docket for the term is already filled.

But even when the court agrees to take a case, the chief justice as the most senior member can assign himself to write the opinion in any decision when he’s in the majority. It could be majority of the court’s conservatives or an ideological mix.

That way Roberts can shape the majority’s reasoning even if he can’t determine the outcome, Johnson said.

Epps pointed to an early test for Roberts, Fulton v. City of Philadelphia, which is scheduled for argument Nov. 4. The case involves a challenge to a Philadelphia policy that outlaws LGBT discrimination by foster care agencies with city contracts, and is the latest battle over tension between anti-discrimination laws and sincerely held religious beliefs.

If Roberts joins the majority, he could try to author the opinion to avoid the court making drastic changes in this area.

But, Adler said, “if the four conservative justices want to go farther than the chief justice is willing,” what Roberts doesn’t have is the ability to do is create an alternative majority with the court’s liberal bloc.

- With Madison Alder

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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