UNEASY LIES THE HEAD THAT WEARS THE CROWN: A CHIEF JUSTICE'S STRUGGLE FOR HIS COURT.

• Author: Pomerance, Benjamin

"[I]t would not be surprising to see Roberts become the leader and periodic 'swing voter' on the Court after Kennedy's retirement." --Albany Law Review, 2017/2018 (1) "After years of the spotlight shining on Kennedy, the Chief Justice is now in position to be the king of his Court. How he uses this authority will ultimately answer his all-important question about what his legacy will be." --Albany Law Review, 2019/2020 (2) A couple of years can carve a chasm of distinction. When I last wrote in the pages of the Albany Law Review about Chief Justice John Roberts, the jurist who has carefully cultivated his reputation since high school seemed poised to reach his pinnacle of triumph. (3) Justice Anthony Kennedy, the Court's longtime "swing voter," had retired, and all eyes were firmly affixed upon the Chief Justice to observe his every move. (4) While no one expected Roberts to become a carbon copy of Kennedy, the Chief Justice appeared to be the least ideologically rigid justice remaining upon the Court. (5) He had moved in this direction for the past few years, receiving the ire of politically conservative commentators when he voted in a manner that they deemed unfit for a political conservative in a number of high-profile cases about abortion, same-sex marriage, and--most famously of all--the Affordable Care Act. (6) Overall, his record remained predominantly conservative in nature, but he had become the member of the Court who seemed most willing to be swayed by a compelling argument from the opposite side of the political aisle. (7)

Against a chorus of critics who denounced the partisanship on both ends of the political spectrum of the Court, Roberts remained the antidote, working earnestly to insist that the Court bore at least some semblance of impartiality. (8) In this role, the Chief Justice appeared ready to be the unmistakable king of his Court.

The character of that Court is strikingly different today. (9) The death of Justice Ruth Bader Ginsburg, and the subsequent appointment of Justice Amy Coney Barrett, generated weeping from most of the nation's political liberals and rejoicing from most of the nation's political conservatives. (10) "An extraordinary four years of disruption, division and partisan warfare finds Republicans on the threshold of a dream decades in the making: a Supreme Court with a seemingly unshakable conservative foundation," Robert Barnes wrote in The Washington Post. (11) Morgan Marietta, a professor of Political Science at the University of Massachusetts -Lowell, pointed out that Barrett's appointment created the first "decidedly conservative [C]ourt" for the first time "since the justices became a dominant force in American cultural life after World War II." (12) Almost immediately, conversations arose with even greater intensity about the legitimacy--or lack thereof--on a Court that plenty of observers decried as being more politically motivated than ever before. (13) On multiple occasions in recent months, some of the justices have gone out of their way to publicly defend their own integrity and the integrity of their Court, proclaiming that their paramount concern is law, not politics. (14) This included Barrett's highly publicized pronouncement that the Supreme Court was not comprised of "partisan hacks" (15) delivered, ironically enough, at an appearance alongside United States Senate Republican minority leader Mitch McConnell, the politician most responsible for ensuring that Barrett's confirmation hearing took place immediately after Ginsburg's death, at the celebration of a University of Louisville facility that McConnell named after himself. (16)

Moments such as these likely leave Roberts cringing. The Chief Justice who pronounced most of his predecessors as failures due to their inability to unify the Court probably cannot help fearing the same fate in leading a Court that much of the public does not appear to trust. (17) A man of constrained dignity, always immaculately presented and perfectly prepared, Roberts has always taken great pains to avoid maneuvers that could cause personal or institutional harm. (18) His jurisprudential record of the past several Court terms demonstrates these concerns, generally seeking the narrowest possible holding and avoiding grand pronouncements even in cases that at first glance offered the potential to re-shape the nation's legal landscape. (19) Beyond the bench, his public appearances tend to be equally vanilla in nature, with words carefully chosen to provide a pleasant atmosphere without ever revealing too much, growing extremely passionate only when rising to defend the Court's honor. (20)

Now, after enduring the public turmoil of Justice Brett Kavanaugh's confirmation process (21) and multiple attacks on the Court from former President Donald Trump, (22) Roberts finds himself playing defense once again--a burden that he may be forced to bear for the remainder of his time on the bench. (23) Unlike the Roberts about whom I wrote in 2019, this iteration of the Chief Justice does not appear to stand at the center of his Court. (24) Today, a sweeping politically conservative decision could emerge from the Court without requiring any approval from Roberts, with five expected politically conservative votes--Barrett, Kavanaugh, Clarence Thomas, Samuel Alito, and Neil Gorsuch--able to render an opinion that casts the Chief Justice over to the sidelines. (25) Thomas has been clear in his pronouncements that he will gladly vote to overturn Court precedents that are, in his opinion, wrongly decided. (26) Barrett, in a Texas Law Review article, stated that it is "more legitimate for [a justice] to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it." (27) If such views become the dominant opinion among Alito, Gorsuch, and Kavanaugh as well, then the incremental approaches and narrowly tailored holdings that Roberts has been able to consistently achieve could become replaced by the broad constitutional declarations that the Chief Justice has generally steered his Court to avoid. (28)

With this in mind, we now turn to this latest examination of Roberts's role on the Court. I begin with an overview of Roberts's background, a life from which we can glean key information about the issues of paramount concern to the Chief Justice. (29) Next, I provide a summary of Roberts's jurisprudence in his tenure on the Court thus far, with a particular focus on when Roberts historically has crossed the aisle and voted with justices of the Court whose tendencies are more politically liberal. (30) From there, I turn to the "October 2020-21 term," the Court term during which Barrett was appointed, confirmed, and issued her first set of rulings as a Supreme Court justice. (31) My review of this term is limited to the performance of the justices in "divided cases"--cases decided by something other than a unanimous opinion--for it is these cases that "raise the national blood pressure," in the words of the retired Justice David Souter, that tend to be most revealing about the current divisions and alliances upon the Court. (32) In doing so, I look at some of the most notable and most revealing trends that Roberts's voting record and the overall record of the Court during this term reveals. (33)

As ever, the trajectories of one Court term does not present a guarantee for the trajectories throughout the remainder of a Court career. Nevertheless, this first term of the newest configuration of the United States Supreme Court does provide several indications about Chief Justice Roberts's current place on the bench, along with clues of where the Court--and, specifically, the Chief Justice--may seek to proceed from this point forward.

1. THE ROBERTS RECORD: WHAT THE SEVENTEENTH CHIEF JUSTICE HAS DONE THUS FAR--AND WHY IT MATTERS

   1. Biographical Background

      In December 1968, the headmaster of La Lumiere School received a letter from a thirteen-year-old boy. (34) "I won't be content to get a good job by getting a good education," John Glover Roberts, Jr., wrote in immaculate script. (35) "I want to get the best job by getting the best education." (36) Admitted to the all-male Catholic boarding school, the adolescent son of an electrical engineer from Hamburg, New York, proceeded to fulfill his promise, graduating as the valedictorian of his class at La Lumiere after four years of seemingly non-stop labor. (37) "At 8 at night John would be studying... at 8 in the morning John would be studying," a former classmate later told CNN legal analyst Joan Biskupic. (38) In the rare moments when he was not studying, young Roberts won the regional wrestling championship, became captain of the school's football team, sang in the choir, performed in the drama club, and won election to the student council. (39)

      He also exhibited an uncompromising intolerance for anything that offended his personal code of dignity. (40) Subjects of his condemnation ranged from his classmates' violations of the school's dress code, about which he was apparently unsparing, to discussions about the school opening its doors to women, which he evidently considered an appalling idea. (41) "[T]he presence of the opposite sex in the classroom will be confining rather than catholicizing," he wrote in an editorial for the school's newspaper. (42) "I would prefer to discuss Shakespeare's double entendre and the latus rectum of conic sections without a [b]londe giggling and blushing behind me." (43)

      It is often dangerous to take the actions of a person's high school days and attempt to find in their teenage conduct a road map for the rest of their life. With Roberts, however, the temptation becomes difficult to resist. Much of the Chief Justice's life appears to mirror fundamental aspects of his achievements and his behavior as a student at La Lumiere: academic brilliance, unrelentingly hard work, a strait-laced manner of living, and an...