Chief Justice John Roberts has recently sided with the Supreme Court’s four liberal justices on three key rulings: barring discrimination against LGBTQ employees; outlawing draconian abortion restrictions in Louisiana; and protecting about 700,000 undocumented “Dreamers” from deportation.
To think that the deeply conservative chief has somehow undergone a conversion and moved to the left profoundly misunderstands his motives. Precisely because he is still a conservative, in the best sense of that noble word, Roberts believes deeply in stability and precedent. In his opinion on the Louisiana abortion case, he quotes Sir William Blackstone, the 18th-century British jurist, about the preeminent need “to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.”
Those values set Roberts directly against the prevailing culture in Washington today, where every decision is seen through the lens of partisan — even tribal — loyalties. An Us-Against-Them mentality, fueled and fostered by President Trump, has been mimicked by his opponents; both sides now aim to transform the judicial branch from unbiased arbiter to unwavering ally.
Trump has made good on his campaign promise, packing the federal bench with about 200 youthful orthodox right-wing judges. Joe Biden, his Democratic opponent, has also violated the tradition of an unbiased judiciary, vowing to appoint a black woman to the court who passes a strict litmus test: upholding legalized abortions.
In his recent decisions, Roberts has taken a very different approach, putting “the institutional integrity of the Supreme Court over personal ideology,” according to his biographer, Joan Biskupic. Richard J. Lazarus, a Harvard law professor, told The Washington Post that the chief’s opinion in the abortion case was “a shot across the bow at presidential candidates who campaign with lists of nominees based on the assumption that, if confirmed, they will, of course, necessarily vote based on the preferences of the majority who supported that candidate.”
Roberts has not always lived up to those principles, and his deep antipathy to racial preferences has, at times, strongly served Republican partisan interests. In 2013, he provided a critical fifth vote in the disastrous Shelby County ruling that gutted the Voting Rights Act of 1965 and has led to a wholesale GOP assault on the political power of minority voters, who tend to support Democrats. Three years earlier, he joined another five-vote majority in the Citizens United case that opened the floodgates for wealthy individuals to buy political influence through unlimited campaign contributions.
But his defense of the “institutional integrity” of the court has been strengthened by two developments since those decisions. The retirement of Justice Anthony Kennedy in 2018, and his replacement by Brett Kavanaugh, made Roberts the swing vote between the court’s liberal and conservative wings. And Trump’s incessant attacks on “so-called” and “unelected” and “Obama” judges have clearly offended the chief and led him to issue a stunning rebuke of the president.
“We do not have ‘Obama judges’ or ‘Trump judges,’ ‘Bush judges’ or ‘Clinton judges,’” Roberts asserted. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
The value of that “independent” judiciary — and Justice Department — has been graphically illustrated by two recent cases involving political allies of the president. Trump’s former national security adviser, Michael Flynn, twice pleaded guilty to perjury charges, and yet Attorney General William Barr has tried to drop the case against him. The presiding district judge, Emmet Sullivan, asked outside lawyer John Gleeson to review the case, and Gleeson branded Barr’s action “highly irregular conduct to benefit a political ally of the president.”
Still, a three-judge panel upheld Barr’s misguided action, and the majority opinion was written by Neomi Rao, a classic ideologue appointed by Trump and approved by the Senate without a single Democratic vote. Her opinion was immediately greeted by a triumphant Trump, who tweeted: “Great!”
A Justice Department lawyer, Aaron Zelinsky, told Congress that the department softened a sentencing recommendation for another Trump crony, Roger Stone, “because of his relationship to the president.” He agreed to testify, said Zelinsky, because “what happened here was wrong.”
When it comes to the rule of law, Trump is no conservative. He’s a radical devoted to weaponizing the legal and judicial process to serve his political aims and allies. In recent decisions, the chief justice has shown he is the true conservative: defending the “even and steady” application of precedent and principle.
Steven Roberts can be contacted by email at firstname.lastname@example.org.