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Hello, Amy Coney Barrett. Goodbye, Chief Justice John Roberts?
With the Senate vote confirming a not-so-stealth right-wing ideologue in Barrett to fill the extremely precious Supreme Court seat left vacant by the death of women’s rights icon Justice Ruth Bader Ginsburg, the days of Chief Justice Roberts leading the court may be numbered … by his own doing.
Roberts has spent a lot of time over the last few years carefully solidifying his legacy as more of a moderate justice rather than one who is on the far right wing. His first major step in that direction was his decision to abandon the Court’s conservatives in 2012 and cast the deciding vote to save the Affordable Care Act (ACA), better known as Obamacare.
Right-wingers were stunned this June when Roberts voted to reject the president’s efforts to end the Deferred Action for Child Arrivals (DACA) program that provides protections against deportation for young adults who were brought to America as children without the appropriate immigration paperwork.
To add insult to right-wing injury, Roberts also helped give a win to the LGBTQ community this year by siding with liberals in a case that concluded that a federal law banning workplace sex discrimination applies to cases involving gender identity and sexual orientation, something conservatives have been fighting against vehemently.
Most recently, Roberts joined the court’s left wing in a 4-4 decision, that let stand a Pennsylvania law allowing mail-in and absentee ballots to be counted after November 3, as long as they are postmarked by Election Day. Voter fraud mongers had dearly hoped that the Supreme Court would reject the lower court’s ruling, allowing Pennsylvania — a key state to winning the Electoral College — to ignore ballots that arrive after Election Day, through no fault of the voters.
While these rulings all have a decidedly liberal flavor, it’s evident from the majority of cases Chief Justice Roberts has voted on that he is far from abandoning his conservativeness. But it’s also clear that Roberts has been trying to steer his judicial legacy away from the extreme right by finding select cases through which to soften the moves by the more ideological members of the Court.
The one thing these cases have in common? It’s not that Roberts has shifted idealogically; he hasn’t. What he has done is find a way to preserve these laws and programs by finding procedural or non-central legal issues he could hang his robe on. By viewing certain cases through a slightly different lens than his conservative colleagues, like his decision on the ACA, Roberts has been able to influence the outcome of some cases that address important social issues to give him a more relatable judicial legacy.
Roberts doesn’t want his legacy to be that of leading a court full of Grinches.
I suspect on the DACA and LGBTQ cases, Roberts’ approach to those issues most likely were influenced on some level by his college-aged children (and possibly the same with Justice Neil Gorsuch who sided with Roberts and the court’s liberals on the LGBTQ discrimination case). Their Millennial & Gen Z children no doubt have friends personally impacted by workplace scenarios that discriminate against gay and transgender Americans, so it’s not a stretch to imagine dinner conversations at the Roberts’ household on this topic.
That all comes to an end with Amy Coney Barrett and a 6–3 conservative court. Roberts will now be at the mercy of justices who aren’t merely legal conservatives but who have been appointed to be conservative activists. His ability to carve out small spaces in the law to preserve certain social rights is at an end.
While Roberts is a relative youngster on the court at 65, he has been on the court for 15 years. The “Earl Warren Court” lasted 13 years. The “Warren Burger Court” lasted 17 years. If Roberts truly wants to protect his legacy and maintain control over the cases that will have his name attached to them, and not see them either chipped away at or have them completely shredded while he’s at the Court’s helm, there’s only one choice for him — to resign and not be a part of what will be the inevitable tearing down of important cases that in any other era would be considered settled law.
I don’t believe Roberts will do that if #45 is re-elected; but if Joe Biden wins, I suspect that Roberts — some time not long after January, 20, 2021 — will decide it’s time to hang up his long black robe, spend more time with his family and find a way outside the Court to protect the cases for which he’s gone out on a political limb. Everyone wants the mold their own legacy in life. Resigning from the Court might be the only legacy play left for Roberts.