WASHINGTON – Chief Justice John G. Roberts Jr. voted in a number of impressive decisions over the past two weeks expand L.G.B.T.Q. right, Protect the young immigrants known as dreamers and to abolish a Louisiana abortion law. In all three decisions, he voted with the four-member liberal wing of the court.
These decisions encouraged the progressives and infuriated the Supreme Judge's usual conservative allies. But these reactions hid a greater truth about Chief Justice Roberts: 15 years after his tenure, he now exerts an influence that has led experts to look for historical comparisons.
"Roberts isn't just the most powerful player on the pitch," said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. "He is also the most powerful Supreme Judge since at least 1937."
As an incrementalist and institutionalist, the Supreme Judge generally pushes the court to the right in small increments, looking at its reputation and legitimacy. He is impatient with legal abbreviations and, at just 65, can afford to play the long game.
Chief Justice Roberts has replaced Justice Anthony M. Kennedy, who retired in 2018, as a member of the court in his ideological center, and his voice is now the decisive one in narrowly divided cases. Being both the top judge and the swing vote gives extraordinary power.
But his key role on the court could be fleeting. If President Trump were able to appoint a replacement for 87-year-old judge Ruth Bader Ginsburg or 81-year-old judge Stephen G. Breyer, the senior judge would almost certainly be outnumbered by a conservative majority on his right.
And if Joseph R. Biden Jr. wins the presidency, he may have fewer options to remodel the court in the short term, given that the oldest member of the conservative wing of the court, Justice Clarence Thomas, is 72 years old, which is relatively young by the standards of Court.
But at the moment, Chief Justice Roberts is communicating the majority opinion when he is in the majority, which is almost always the case these days. He uses this power strategically, selects colleagues who are likely to write broadly or closely, and saves important decisions for himself.
In his first 14 terms, he was in the majority in 88 percent of cases. So far, according to Professor Epstein, this number has risen to 98 percent. "Even more amazing," she said, "is that Roberts voted for the majority in 96 percent of non-unanimous decisions, compared to his 80 percent average." This is the best performance of a Supreme Judge since at least the 1953 term. ”
However, this may be the most striking statistic: he was in the majority in each of the 10 decisions made so far with 5 to 4 or 5 to 3 votes during this term. Since the Supreme Judge Charles Evans Hughes during his term of office, which ended in 1938, there was no majority of the Supreme Judges in the majority in every case, and only in four cases.
Chief Justice Roberts spoke admirably about Chief Justice Hughes and his skillful management of a clash with President Franklin D. Roosevelt. It was in 1937 when Roosevelt, unhappy with the Supreme Court rulings that put down his New Deal programs, announced a plan to add judges to the court.
"One of the biggest crises the Supreme Court has faced against Madison since Marbury was the FDR's court hearing plan," said Chief Justice Roberts at New York University in 2015, "and it was Hughes, a very unpopular Supreme Court to conduct this showdown around noon against America's favorite president since George Washington. "
"There are things to be learned from this," Chief Justice Roberts said, and he seemed to apply these lessons to his relationship with Mr. Trump, who attacked the idea of judicial independence.
Chief Justice Roberts was appointed by President George W. Bush in 2005 and was then considered a reliable product of the conservative right-wing movement. Over the years, he occasionally disappointed his followers and allies, particularly by voting twice maintain the law on affordable care and in Rejection of the Trump administration's efforts add a citizenship question to the census.
However, these disappointments cannot be compared to the anger that followed the recent decisions. Conservatives said the Supreme Judge abandoned the principle to protect the reputation of the court – and his own – from allegations that it was a political institution.
"Americans who hope for justice for women and unborn babies have been disappointed again by John Roberts today," said Arkansas Republican Senator Tom Cotton. "The Supreme Judge may believe that he is protecting the court's institutional integrity, but in fact his politicized decision-making only undermines it."
Conservatives said they suspected the chief judge was acting, at least in part, because of an aversion to Mr. Trump, who has been campaigning against federal judges who rule against him and his policies for years. They quoted the Supreme Judge's majority opinion rejecting government rationalization in the census and dreamers' cases.
Two cases in which Trump's efforts to block the disclosure of his financial records are still pending before the court during this term. They will test Chief Justice Roberts' leadership and his voices in them will add important details to the portrait he has created so far.
Chief Justice Roberts previously got involved with the president and made an extraordinary statement in 2018 after Mr. Trump criticized a decision by an "Obama judge".
"We have no Obama judges or Trump judges, Bush judges or Clinton judges," said the chief judge. “We have an exceptional group of dedicated judges who do their best to give the same right to those who appear before them. We should all be grateful for this independent judiciary. "
In other situations, the Supreme Judge insisted that the judges not act as partisans. "We don't work as Democrats or Republicans," he said in 2016.
Richard J. Lazarus, a law professor at Harvard, said Monday's abortion decision upheld Chief Justice Roberts' statements.
"The boss sends a broader message to both parties, and this time it is the Republicans who score the goal," said Professor Lazarus. "But the message would be the same if it were the Democrats and lost their preferred position."
The message was as follows: Professor Lazarus said: "You cannot expect us to act like partisan legislators."
The abortion case concerned a law in Louisiana that was essentially identical to a Texas law that the court suppressed four years ago before Mr. Trump appointed two new judges. Contrary to 2016, Chief Justice Roberts had voted to comply with Texas law.
Professor Lazarus said he suspected that the Supreme Judge was offended by the idea that changing the composition of the court should justify a different outcome in the basically identical case.
Professor Epstein noted that during this term, Chief Justice Roberts has voted with liberal and conservative judges at roughly equivalent rates.
"In a time of" fear and loathing "between opposing partisans," she said, "it's pretty extraordinary."
Melissa Murray, a law professor at New York University, said she was considering alternative explanations for Chief Justice Roberts' vote in the case of abortion. One was that he was "a liberal closet". The other was that he was "a deep-seated institutionalist who wanted to preserve the court's legitimacy and constitutional values".
She said the second explanation was more true, although she said that his consensus opinion in the case of abortion had somewhat limited the power of the 2016 precedent that he said.
Mike Davis, a former attorney for the Senate Judiciary Committee who is now head of the conservative Article III project, said he was confused by Chief Justice Roberts' votes.
"The boss settles these cases so that he believes to protect the integrity of the Supreme Court," said Davis. "And only the boss understands the method of this madness."
But he added that the decisions would motivate conservative voters in the upcoming elections to support Trump and the Republican Senate candidates in hopes of cementing a more reliable conservative majority in court.
"In the next four years, the President of the United States could appoint four or more Supreme Court judges," said Davis. "And that is why it is so important that conservatives turn out and vote."
Professor Lazarus said that this type of thinking failed to distinguish between politics and law.
"The clear message from the boss is that judges don't do their jobs," he said. "It's a bug shot on presidential candidates struggling with candidate lists, based on the assumption that, if confirmed, they will of course necessarily vote based on the preferences of the majority who supported that candidate."