THE KING IN HIS COURT: CHIEF JUSTICE JOHN ROBERTS AT THE CENTER.

Author:Pomerance, Benjamin
 
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This was supposed to be the United States Supreme Court Term in which everything changed. (1) From the moment when Justice Anthony Kennedy announced his retirement from the federal government's loftiest bench, observers and commentators burst forth with predictions of a new order on the Court, a new day in which political conservatives would finally maintain an unquestioned majority. (2) Opinions emerged from both sides of the aisle about the imminent reversal of longstanding precedents, with political liberals worrying and political conservatives cheering. (3) Statements from many individuals returned to the familiar theme of the political polarization of the Court, a chorus that only intensified after the lengthy battle over the confirmation of Justice Brett Kavanaugh ended in a Senate vote split almost uniformly along political lines. (4) With the departure of the Court's venerable "swing justice," and the replacement of that jurist with an individual viewed as a reliable proponent of the political conservative agenda, plenty of prognosticators focused on a future in which arguments before the nine Justices would be little more than a show trial, given that the outcomes would already be pre-ordained along partisan lines. (5)

The reality, however, appears to be rather different from what these stark predictions anticipated. (6) At the conclusion of the first Term of the post-Kennedy era, the precedents of decades past do not all lie in tatters, even those precedents that were authored by Justices viewed as politically liberal. (7) In fact, political conservatives found plenty of opportunities to complain about decisions rendered by the Court during this Term, while political liberals discovered that they had unexpected reasons to applaud the Court's majority in several instances. (8) Disputes involving the death penalty, the rights of the accused, abortion, asylum, legal deference to government agencies, and the addition of a question about citizenship on the United States Census all ended in a manner that left many political conservatives condemning the Court. (9)

Amid the bloc of politically conservative Justices, subtle but important fissures emerged. (10) Justice Neil Gorsuch, for instance, broke ranks with Kavanaugh regarding the power of law enforcement in one case involving a vaguely worded statute, a move that Kavanaugh denounced as "a serious mistake." (11) In another criminal law case, Gorsuch angered Justice Samuel Alito by opining that a violator of a supervised release program could be sentenced only by a jury, not by a judge, causing Alito to reply that Gorsuch's opinion "is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications." (12) Kavanaugh split with Gorsuch on the impact of racial bias, writing the Court's majority opinion--in opposition to Gorsuch's vehement objections--to overturn the murder conviction of an African-American man tried six times by juries that were nearly uniformly Caucasian. (13) Justice Clarence Thomas provided opinions that mystified even his fellow conservatives, such as casting doubt about the validity of Gideon v. Wainwright's (14) guarantee of the right to effective counsel in criminal court proceedings and expressing a desire to overturn fifty years of Court precedents to make it easier for public officials to win lawsuits for defamation of character. (15) Even in cases where the conservatives on the Court united in the outcome of the case, it was not uncommon to find a separate concurring opinion or a separate dissent from Thomas endorsing a more ardent position on the issues in the case than the other conservative Justices were willing to take. (16)

Yet the focal point of this latest Court Term was unquestionably Chief Justice John Roberts. (17) The man who became the youngest Chief Justice in two centuries when George W. Bush appointed him to the Court has long been a lightning rod for public controversy, an ironic reality given that Roberts takes great pains to avoid any semblance of controversy in his public image. (18) In many ways, Roberts is at once visible and invisible, a highly public ambassador for the Court and for the legal profession who still manages to remain intensely private, a man lauded for his intellectual eminence who does not succumb to the entreaties of politically conservative groups like the Federalist Society, which seeks Roberts's public endorsement of their viewpoints. (19) His own reputation has been a paramount concern for him since at least his high school days, and bound up in his own reputation now is the reputation of the Court on which he occupies the center seat. (20) In 2006, he bluntly told journalist Jeffrey Rosen that "of the [prior] [C]hief [J]ustices; certainly a solid majority of them have to be characterized as failures."21 In Roberts's life, failure in any form has never been an option that he has willingly accepted. (22)

Plenty of people, however, denounce Roberts as a failure on the Court. (23) Many of these attacks come from political liberals, an unsurprising fact given that Roberts has spent much of his career working for politically conservative administrations and defending politically conservative positions. (24) A surprising number of arrows, however, have been fired by political conservatives, beginning when Roberts stunned the nation by ruling with the Court's liberal wing in 2012 to uphold the Affordable Care Act as an exercise of Congress's power to levy taxes. (25) In the intervening seven years since that decision, virtually any voting alignment involving Roberts and any of the political liberal Justices received condemnation from conservative camps, with some conservatives even shouting for the impeachment of the man whom they had once hailed as a hero. (26) President Donald Trump was one of these critics, publicly lashing out at Roberts after the Affordable Care Act decision and continuing to fire shots across the bow at the Chief Justice during his presidential campaign. (27) Even today, this battle continues, exemplified by a recent exchange when Trump attacked the Ninth Circuit Court of Appeals as a court of "Obama judges," and Roberts rapidly returned fire, vigorously declaring in multiple public appearances that the federal judiciary maintained its impartiality--statements that drew quick retorts from the President on his ever-active Twitter feed. (28)

With the retirement of Kennedy, the attention on Roberts reached unprecedented heights. (29) Most commentators agreed that Thomas, Alito, Gorsuch, and Kavanaugh had been and would continue to be reliable votes for all of the favored positions of modern political conservatives. (30) On the other side of the political spectrum, most observers determined that Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor would continue to side with the views of modern political liberals on most issues. (31) In this analysis, Roberts remained the only wild card. (32) Historically, his conservative bona fides were unquestioned. (33) With growing public scrutiny of the political alliances on the Court, however, some commentators questioned whether Roberts would be willing to be a reliable conservative voice on "his" Court, or whether he would fear damage to his Court's reputation--and, by extension, his own carefully cultivated legacy--if he routinely sided with the other conservatives. (34) When Trump's appointment of Kavanaugh turned into a battle that captured the nation's attention and appeared to further erode the public's respect for the Court, observers again wondered whether Roberts would seek to distance himself from the views of a Justice accused of sexual assault and partisan politicking and seek a more moderate ground. (35)

One Court Term does not satisfactorily resolve all of these questions. Ample opportunity exists for Roberts--and, indeed, the Court overall--to transform itself many times during the upcoming years. Still, it is difficult to resist the temptation to draw at least some initial conclusions from the outcomes of this highly anticipated Term. This Article does so by focusing specifically on the actions of the Chief Justice, the man believed to be the only potential successor to Kennedy as the "swing voter" on this lofty bench. (36) It begins by examining the criteria that Roberts appears to apply when determining whether a Chief Justice is "successful" as a leader of the Court, and then summarizes certain aspects of Roberts's own character and background that seem to contribute to these viewpoints. From there, the Article moves to a review of the 2018 Term--the Court's most recent--with a focus on the cases in which Roberts broke ranks with at least some of his politically conservative brethren to render decisions that a contemporary political liberal would customarily favor. Lastly, the Article discusses the trends that seem to emerge from this admittedly limited sample size, determining what has changed, what has remained the same, and what may change in the future on the post-Kennedy Court, an undeniably divisive Court on which a man who seeks to avoid division now sits both literally and figuratively at the center.

  1. CHIEF PRINCIPLES: ROBERTS'S VIEWS ON A CHIEF JUSTICE'S LEGACY

    If there is one individual whom Roberts considers successful in the role of Chief Justice, that individual is John Marshall. (37) Such a decision is, by itself, not astonishing, given that Marshall tends to inspire reverence today as the leader who established the Court's standing as an institution to be respected and obeyed as an arbiter of the Constitution. (38) Yet the primary reasons for Roberts's lionization of Marshall are more surprising. (39) Cementing the legitimacy of the Court in the public's eye is, of course, the end result of Marshall's tenure that Roberts praises. (40) Yet the current Chief Justice devotes even...

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