Voting for Legacy: How Chief Justice Roberts is Protecting the Supreme Court

This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to  publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020. 

Student Author: Jessica Ochoa

 

“What is Chief Justice John Roberts Up To?” proclaimed an NPR article in July of 2019.[1]  After the confirmation of conservative Justices Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court, news articles abounded questioning whether the Chief Justice would be the Court’s new “swing vote” following Justice Kennedy’s retirement.  Arguing for the Chief Justice’s new role, these articles stressed that he may be the swing vote but he’s “no moderate” and is a “solid conservative.”[2]  However, his recent sidings with the liberal justices in a number of cases and his questions during argument in June Medical Services v. Russo—a case challenging Louisiana’s restrictions on abortion based on admitting privileges for doctors—suggest that he may very well lean with the liberal justices on social issues.

In order to protect the reputation and respect that the Court commands, the public must feel that the Court is impartial and apolitical in its decisions and that its holdings are not motivated by the politics of a single person but are instead grounded in the Constitution.  Chief Justice Roberts seems to be well aware of this.  After President Trump criticized a federal judge as an “Obama judge,” the Chief Justice broke his characteristic silence and spoke out against the president stating that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges. . .[The] independent judiciary is something we should all be thankful for.”[3]   With the contentious appointments of Justices Gorsuch and Kavanaugh, the Chief Justice seems to be extra aware of how the public views the integrity of the Court.[4]

Siding with the liberal justices may be one of the ways that the Chief Justice seeks to protect the view that the Court is impartial.  In cases involving social issues, such as June Medical Services, the conflict between politics and impartiality becomes stark.  The Chief Justice was part of the dissent for  a 2016 case Whole Woman’s Health v. Hellerstedt, in which the court struck down a Texas law by a 5-3 vote that, like the law in June Medical Services, restricted access to abortion by requiring doctors who provide abortions to have admitting privileges at a nearby hospital.[5]

Should the Court vote to uphold the Louisiana law, it must disregard Whole Woman’s Health, with the only difference being that the Court now has a firm conservative majority.  This will inevitably lead to view that conservatives may be able to push social agenda simply because conservative justices hold the majority.  As a result, in order to maintain the view that the Court’s decisions are based on law and not politics, the Chief Justice will be forced to go against his own dissenting vote in Whole Woman’s Health.  The Chief Justice is faced between choosing between his beliefs and the law.

When speaking at an event at Belmont University College of Law, Chief Justice Roberts stated that “people need to know we’re not doing politics.”[6]  The Chief Justice may not suddenly begin to shift his views, but even simply voting to uphold precedent may be a way in which he can protect the integrity of the Court.  The hope among conservatives is that, with a conservative majority, they may be able to overturn decisions such as that of abortion.  However, by simply voting to uphold cases such as Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman’s Health, the Chief Justice sends a message to the public that the Court is not there to push social agendas, but to uphold the law, even if they disagree with it.

In order for people to trust and respect the holdings of the Court, it must be impartial.  The Chief Justice has become the swing vote not because he suddenly holds liberal leanings but because he knows that pushing conservative social agendas through the courts simply because there is a majority may weaken belief in the Court’s impartiality.  In a perfect world, there would be no swing vote because justices would vote in accordance with the law and not political belief, but until then the Chief Justice is cognizant of how his vote not only shapes a particular issue, but shapes the view of the Court.

 

[1] Nina Totenberg, Fear And Loathing At The Supreme Court – What Is Chief Justice John Roberts Up To?, NPR (July 8, 2019, 5:00 AM), https://www.npr.org/2019/07/08/738930098/fear-and-loathing-at-the-supreme-court-what-is-chief-justice-john-roberts-up-to

[2]Tucker Higgins, Roberts signals he could side with liberals in Supreme Court abortion arguments, CNBC (Mar. 4, 2020, 11:15 AM), https://www.cnbc.com/2020/03/04/supreme-court-abortion-case-roberts-signals-he-could-side-with-liberals.html; Lawrence Hurley, U.S. chief justice’s ‘swing’ role shown in census, gerrymandering rulings, Reuters (June 27, 2019, 6:20 PM), https://www.reuters.com/article/us-usa-court-chiefjustice/us-chief-justices-swing-role-shown-in-census-gerrymandering-rulings-idUSKCN1TS3A4

[3]Cheyenne Haslett and Merideth McGraw, After rare rebuke from Chief Justice John Roberts, Trump fires back on Twitter, ABC (Nov. 22, 2018, 9:55 AM), https://abcnews.go.com/Politics/chief-justice-john-roberts-rebuts-trump-obama-judge/story?id=59344259

[4] John Roberts, the New ‘Swing’ Vote? Not Likely. Try, Perhaps, ‘Median’, Constitutional Accountability Center (las visited April 15, 2020), https://www.theusconstitution.org/news/john-roberts-the-new-swing-vote-not-likely-try-perhaps-median/

[5] See generally Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[6] Melissa Quinn, John Roberts is voting with liberal justices, but he’s not one of them, Washington Examiner (Mar. 8, 2019, 12:03 AM), https://www.washingtonexaminer.com/policy/courts/john-roberts-is-voting-with-liberal-justices-but-hes-not-one-of-them

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