The membership of the Supreme Court has almost entirely turned over since John G. Roberts Jr. became chief justice. Only Clarence Thomas remains from the group that Roberts joined in 2005. But the transformation of the court goes well beyond its personnel. The original Roberts court was dominated by moderate Republicans (preeminently Anthony Kennedy and Sandra Day O’Connor, but also John Paul Stevens and David Souter), and the justices were, for the most part, invisible to the broader public except for their pronouncements from the bench. Today, the court reflects, with considerable precision, the stark political divides that animate the other branches of government (six conservative Republicans, three liberal Democrats), and it’s embroiled in an off-court ethics scandal that seems to get worse all the time.
There is reason to believe that Roberts, who is 68 years old and beginning his nineteenth term this week, is unhappy about these developments. Both politically and jurisprudentially, Roberts is a man of a different time. A lifelong Republican, he was a young lawyer in the Reagan White House and two decades later volunteered, in his private practice, to help George W. Bush in the litigation that led to Bush v. Gore. But Roberts appears reluctant to understand what his party has become. His sole public rebuke of Donald Trump displayed Roberts’s unfamiliarity with the contemporary world. In 2018, President Trump denounced an “Obama judge” in California who had ruled against one of his administration’s immigration policies. Roberts decided to make a rare extrajudicial statement in response, telling the Associated Press, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” But Trump, not Roberts, was closer to correct. As the chief justice’s own court has illustrated, especially lately, the judiciary is deeply politicized, and the most important thing you can know about any federal judge these days is the party of the president who appointed her. Roberts probably wishes that it were otherwise, but Trump’s cynicism was more grounded in reality than the chief’s naïveté.
Roberts fancies himself a judicial minimalist, who says he advocates leaving most of society’s important decisions to the people’s representatives rather than to unelected, life-tenured judges. As he wrote dissenting from Obergefell v. Hodges in 2015, when the court guaranteed the right to same-sex marriage, “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.... Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.” But Roberts is a minimalist except when he isn’t, as in 2013, when he gutted the Voting Rights Act, the most important civil rights law in American history, which was also passed (and repeatedly reauthorized) through “the democratic process.” In Shelby County v. Holder, the chief justice asserted, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Speaking of “current conditions,” within days of the opinion, several Southern states passed new laws making it harder for Black people to vote, a trend that has now continued for a decade.
Still, the court’s three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—have joined with Thomas and Samuel Alito to blast past Roberts in a dramatic lurch to the right. It’s an understatement to say that Roberts is no liberal, but he’s not like his new colleagues either, who appear determined to uproot every liberal or even moderate precedent of the last century. In the most notorious decision of recent years, 2022’s Dobbs v. Jackson Women’s Health Organization, Roberts actually agreed with his five conservative colleagues that Mississippi’s restrictions on abortion should be upheld; but the chief didn’t think it was necessary to do what Alito’s decision did: overturn Roe v. Wade and 50 years of precedent reaffirming that landmark. Roberts’s plaintive separate opinion reads like an old fogey’s complaint about the new kids who won’t respect their elders. “Surely,” he wrote, “we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis”—the rule of precedent. Thomas, now the senior associate justice and the leader of the combative quintet running the court, snapped back in his own separate opinion in Dobbs that he was just getting started in undoing the court’s history, targeting the court’s decisions protecting the right to purchase contraceptives, to engage in private consensual sex, and to same-sex marriage.
As chief justice of the United States, Roberts has a grandiose title, but his actual power over the court is modest, especially now. His only formal authority is to assign opinions but only when he is in the majority. Now that there are five justices to Roberts’s right, they can form a majority and control opinions without him. For example, in Dobbs, Thomas, as the senior associate justice in the majority, assigned the opinion to Alito. The chief justice also has informal authority over the administration of the Supreme Court, which never used to generate much controversy. But now, the court’s processes are also demonstrating the limits of Roberts’s power. In a series of reports, ProPublica revealed that Thomas (and to a lesser extent Alito) have effectively been on the payroll of politically active, conservative billionaires. What’s more, Thomas has been a featured guest at events for donors to the Koch brothers’ political activities, which include much conservative advocacy before the Supreme Court. This blatant corruption has drawn attention to the Supreme Court’s decision to exempt itself from the ethics rules binding on all other federal judges. These disclosures have prompted a cascade of bad publicity and increasing demands for the court to start policing itself or for Congress to impose ethical rules on the justices.
Roberts himself is a figure of personal rectitude, and there is no evidence he would ever consider doing the kind of seedy grasping of Thomas and Alito. But the chief is also a traditionalist at the court, where major internal changes, like ethics rules, are handled by consensus among all the justices. So, even though Roberts has acknowledged the ethical crisis at the court, he’s done nothing to address it. It appears the status quo will continue, especially when Thomas and Alito can count on a loud chorus of support from Republicans in Congress and elsewhere. With no remedy for misconduct by Supreme Court justices except impeachment, Roberts knows that his colleagues can simply brazen out any controversy. He would probably prefer that the court amble to the right rather than sprint there and that his colleagues dial back the grifting and freeloading. But the chief can’t force his colleagues to do anything, and he seems disinclined, in any event, to try.
The tenure of every chief justice demarks an era in the history of the Supreme Court, and Roberts must wonder how “the Roberts court” will be remembered. Roberts is not a radical man, but he is now leading a radical court, which is likely to accelerate its shift to the right this term. For example, the court may soon hold that the Second Amendment requires that people under protective orders for committing domestic violence be allowed to keep their guns. In a case with even broader ramifications, the court may also reconsider the “Chevron doctrine,” which governs how administrative agencies interpret federal law; overruling Chevron, which has been a pet project of Gorsuch and lately, Thomas would cripple the power of the federal government to address national priorities like the environment, industrial safety, and economic competition.
As a Harvard undergraduate, Roberts wrote an award-winning paper that celebrated the great nineteenth-century lawyer Daniel Webster as a man “not bound by the sectional and divisive influences of party politics … a disinterested, self-sacrificing man of wisdom who continually worked with others of his sort to resolve any controversy which threatened national harmony. The man of character did not fight in the think [sic] of political battles, but rather raised himself above the conflict and stilled it through dispassionate compromise.”
But the Roberts court is not about compromise, dispassionate or otherwise. Still, as a man who is only in late middle age by Supreme Court standards, Roberts is not going anywhere any time soon. As a savvy veteran in the ways of the Capitol, Roberts had to know the current court was, in a way, preordained by the Trump presidency and its Republican enablers in the Senate. Everyone else should have seen it coming, too.
