When Chief Justice John Roberts cast the deciding vote in 2012 that maintained Barack Obama’s hallmark accomplishment as president, the Affordable Care Act, he allegedly did so after a month-long effort by fellow conservatives to persuade him to join their cause.
His choice to side with liberal colleagues enraged the right, but it also reinforced the top justice’s position as the court’s head.
That was back then.
Last week, when the Supreme Court convened for a new term that would feature decisions on abortion, gun rights, and torture, Roberts lost the prized position of sitting in the court’s ideological center.
Because to the death of Ruth Bader Ginsburg and the confirmation of Amy Coney Barrett, Roberts – who has portrayed himself as a “institutionalist” trying to preserve the court’s legitimacy – no longer has the single authority to cast the decisive vote in any decision.
So, who is in charge of the Roberts Court?
Legal experts differ on who will eventually be regarded as driving the majority’s views in this session, which has been characterized as “the most significant” the court has faced in “decades” and is expected to be “tumultuous.”
The most closely anticipated case will feature a Mississippi statute that makes abortion illegal after 15 weeks of pregnancy, which is regarded as a direct challenge to Roe v Wade, the historic ruling that legalized abortion.
To win any significant decision, liberals would need not just Roberts, a pro-business conservative, but also another conservative judge to join him for a 5-4 victory against the other conservatives.
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“Roberts is only marginally in charge to the extent that he can bring Kavanaugh or Barrett with him,” said Josh Blackman at the South Texas College of Law Houston.”
For Blackman, it’s now Clarence Thomas, the most conservative member of the court, who rules. “I think we are living in Justice Thomas’s world. He is always thinking ahead several steps and has built an army of supporters,” he said.
Another court observer, Elie Mystal of the Nation, said that it is true that conservative activists have tried to place Thomas at the center of the conservative judicial movement for decades since he has been a consistent backer of the Republican agenda. However, his strong beliefs have made him an anomaly.
“Maybe this term we will get the first impactful majority opinion by Clarence Thomas, because we have not seen it yet [in nearly 30 years],” Mystal said.
According to Mystal, the most probable result is that Neil Gorsuch will emerge as the intellectual conservative heavyweight, which would “bode death” for liberals more often than not.
“Roberts’s ambition is to keep the law as narrow as possible and keep as much of the court’s legitimacy as possible while twirling ever toward the Republicans’ agenda. Kavanaugh likes beer. Amy Coney Barrett likes Jesus. These are fundamentally narrow positions,” he said, with a chuckle.
“Gorsuch wants to fundamentally change the law and reframe the way we think about the law. Gorsuch wants to do horrible things, but ambitious things. He’s got the intellectual tools to accomplish it.”
Most legal experts believe that even if conservatives do not completely overturn Roe v Wade, the abortion decision may be weakened in such a manner that states could effectively make abortion illegal.
Garrett Epps, a law professor at the University of Baltimore, observed that at least two justices – Barrett and Samuel Alito – seemed “unusually defensive” in recent comments in which both defended the court against partisanship accusations.
“I think the thing to watch is whether Roberts can pick off one of the members of the [conservative] super majority to have the result come out differently than the hard right would want,” said Epps. “I think it may not be his court, but his role is by far the most interesting of any of the justices because he is – and he alone – an institutionalist, in the sense that he really cares about the Supreme Court and his place in history, more than he really cares about his own policy goals.”
While Roberts is “very, very conservative”, he is not – Epps added – a “movement conservative”. Nor is he motivated by what Epps characterized as the “rage” of some of the other justices.
According to Franita Tolson, deputy dean for faculty at the University of Southern California Gould School of Law, it is unlikely that Roberts will be able to persuade any other justices to attempt to preserve Roe v Wade, even if he wants to.
“The cases in this term do not give him an easy out to be an institutionalist and trying to build a coalition, versus him indulging his personal preferences. And overturning Roe v Wade might be his personal preference. And if it is, it’s still the Roberts court.”