WASHINGTON – John Roberts heads a Supreme Court in crisis.
The chief justice earlier this week ordered an investigation into the leak of a draft opinion suggesting the court may be ready to rule Roe v. Wade to overturn the 1973 case that legalized abortion nationwide. What comes next could further test Roberts’ leadership of a court where his voice already seems less crucial in determining the outcome of contentious cases.
“This is a time when the court is under siege both externally and internally,” said Todd Peppers, a professor at Roanoke College who writes about the court. “I just don’t think the spotlight on the pitch has ever been brighter in recent history.”
Speaking Thursday at a justice conference in Atlanta, Roberts described the leak as “appalling,” according to CNN.
The Roberts court faced challenges even before the leak, which the boss described as “betraying the court’s confidential information.” Polls have shown a notable decline in public support for the court. And there have been calls recently for term limits on judges and for an increase in the number of judges, as well as for a code of ethics, particularly after reports that Justice Clarence Thomas’s wife, Virginia, has pleaded with Donald Trump’s White House chief of staff to act on the to overturn 2020 presidential election results. The hearings to confirm the court’s youngest judges have been controversial.
The addition of three conservative judges during Trump’s presidency also means there are now five conservative judges to Robert’s right who no longer need his voice, and perhaps his moderating influence, to prevail in a case. The abortion decision could be another example of this, with the court’s other Conservatives poised to go further than Roberts.
Roberts, 67, has noted the limitations of his position in the past. When asked during a 2018 appearance how it was different being a boss, Roberts replied, “In a lot of ways it’s different. In the main it is not. i have one vote I participate in the decision-making process of the court like any of the associate judges.”
Still, there’s a reason the chief is referred to as “first among equals” and historians relate the chief justice’s name to periods of time at the court: the Marshall Court, the Rehnquist Court, the Roberts Court. The chief is first, who speaks when the judges discuss cases at their private conference and moderates that discussion. The chief decides who will write the court’s verdict if the chief has a majority.
Roberts, an appointee to President George W. Bush, has had other challenging times in his 16 years as chief. He has led the court through contentious cases on gay marriage, President Barack Obama’s health care law and Trump-era policies, including the construction of a US-Mexico border wall and the travel ban.
In 2020, Roberts took the spotlight as chairman of Trump’s first impeachment trial, though his role was modest. At the beginning of the Corona pandemic, he led the court through a period in which it decided to postpone hearings for the first time in over 100 years and then conduct them over the phone for a year and a half.
Early in his tenure, in a speech at the graduation from law school in Georgetown and elsewhere, Roberts explained his philosophy in running the court and his preference for decisions where there could be broad consensus in a confined space.
“There are clear advantages to greater consensus in court. Unanimity or near-unanimity provides clarity and guidance for attorneys and lower courts trying to figure out what the Supreme Court meant,” he said in 2006. He added, “The rule of law is strengthened when there is greater consistency and consensus about it gives what the law is.”
Artemus Ward, a professor at Northern Illinois University and one of the editors of a book of scholarly research on chief justices, said Roberts was “trying to reach consensus, trying to govern narrowly.” But after the death of Justice Ruth Bader Ginsburg, a Liberal, and her replacement by Conservative Justice Amy Coney Barrett, “Roberts’ voice is less strong” because even without him, there are five Conservative votes, Ward said.
There is already some evidence of the impact.
Prior to Ginsburg’s death, Roberts joined the court’s four Liberals in rejecting a challenge to the attendance restrictions California imposed on church services because of the coronavirus pandemic. But about a month after Barrett joined the court, judges ruled the other way 5-4 in a case over similar boundaries in New York, with Roberts and the Liberals disagreeing.
Last September, the court ruled 5-4 not to block a new Texas law that bans most abortions in the state. The dissenters were once again Roberts and the three liberal judges.
It was the same lineup in February when the Supreme Court stayed a lower court ruling that required Alabama to draw new congressional districts ahead of the 2022 election to increase black voting power. And in April, when the court reinstated a Trump-era water rule.
“Roberts has lost control of the Supreme Court,” was the title of an article written this month by University of Texas Law School professor Stephen I. Vladeck.
It remains to be seen how divided and how comprehensive the court will be in other decisions, including a key gun ruling, that are yet to be released before the summer court vacation.
Also unknown is how accurately the final opinion in the abortion case will reflect the leaked draft written by Judge Samuel Alito and distributed to other members of the court in February. Politico reported that Alito had the votes of four other conservatives to win Roe v. Wade and a later ruling that upheld a constitutional right to abortion services, Planned Parenthood v. Casey, to pounce. The three Liberals planned to dissent, Politico said, while Robert’s final vote was unclear.
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https://www.local10.com/news/politics/2022/05/05/its-chief-justice-roberts-court-but-does-he-still-lead/ It’s Chief Justice Roberts’ court, but does he still lead?