Maybe Josh Hawley should incorporate a Second Amendment pledge into his new SCOTUS litmus test too. Sounds like we might need it going forward.
Anthony Kennedy is the post-Souter gold standard for undependable Republican appointees but Kennedy at least had a discernible ideology. He was a libertarian. Roberts, I think, might best be described as a right-leaning institutionalist, which makes him less predictable because you’re never sure to what extent his decisions are being guided by legal philosophy or institutional prerogatives. Did he end up on the liberal side in Louisiana’s abortion case because he agreed with pro-choicers on the merits or did he end up there because the left is poised to take power next year and there’s an appetite among some of them to pack the Court? The more Roberts signals his willingness to vote with the Democratic bloc on some culture-war cases, the less urgent the progressive effort to “Avenge Merrick!” by adding justices to the bench becomes.
If that’s unfair to Roberts, all I can tell you is that anyone who’s read the reports of him switching his vote after deliberations on landmark cases can never look at him the same way afterward. It’s been alleged that he frets about the Court being seen as just another hyperpartisan branch of government, undeserving of the respect it traditionally enjoys as a “neutral” arbiter of legal questions. A 5-4 conservative majority voting in lockstep on all major issues would reinforce those perceptions so Roberts supposedly divvies up his deciding votes between the conservative and liberal blocs to maintain the illusion that law, not politics, is driving decisions.
…Even though approaching cases that way is itself highly political.
According to CNN, he’s already sent unspecified “signals” behind closed doors that he might not be onboard with the other conservatives in extending gun rights — which has so spooked Thomas, Alito, Gorsuch, and Kavanaugh that they don’t want to hear Second Amendment cases right now.
Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights…
It takes four votes to accept a case and five to rule on it, and sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts, who had in 2008 and 2010 voted for milestone gun-rights rulings but more recently seemed to balk at the fractious issue.
In mid-June, the high court turned down petitions from 10 challenges to state laws limiting the availability of firearms and when they can be carried in public.
The action perplexed court observers who had believed the right-wing majority was eager to further elucidate the 2008 landmark District of Columbia v. Heller. Some conservative justices indeed wanted to take up the issue, but they apparently could not count on a majority.
You would think, with Trump sliding in the polls, that the conservative majority would be eager to take up hot-button cultural questions and decide them before Biden takes over and starts adding liberals to the bench. It speaks volumes about Roberts’s unreliability that they’re declining to grant cert at a moment like this, doubtless believing that they’re better off waiting and hopefully deciding the issue on a later date when, perhaps, they’ll have a sixth conservative on the Court who can offset Roberts’s vote. By the same token, the liberal bloc may also view Roberts as too much of a wild card on an issue like gun rights to grant cert themselves, fearing that he’ll end up siding with the conservatives after all. They also have incentive to wait on major cases and hope to take them up only after President Biden gets to replace one of the Court’s conservatives.
I wonder if, in fact, Roberts’s unpredictability lately is partly designed to engineer that outcome. If the conservatives can’t count on him to take their side on culturally divisive questions and the liberals can’t count on him to take their side on culturally divisive questions then the Court will end up collectively deciding that it just doesn’t want to hear certain culturally divisive questions. Roberts’s strategic centrism may have the effect of keeping SCOTUS out of the political fray, at least to some degree.
That’s not the only way he might yield strategic centrism. One theory for why he and Gorsuch ended up in the majority in the Bostock case (the one where Gorsuch cited “textualism” in extending Title VII protections to sexual orientation) is because Roberts wanted to make sure that a conservative wrote the opinion rather than a more expansionist liberal. As chief justice, he always gets to assign the majority opinion when he’s in the majority; if he had dissented there, Ruth Bader Ginsburg (the most senior justice in the majority) would have assigned it, probably to herself. That could have made for a more sweeping left-wing opinion, and in any case it certainly wouldn’t have ended up as a commercial for “textualism.” If Roberts is willing to do that in order to steer the Court towards the center and away from the ideological extremes, maybe he’s willing to stick with the left on stuff like gun rights post-Heller for the same reason.
Two points in closing. One: His insistence on centrism now might backfire by creating an even more intense appetite for ideological hardliners. That’s what Hawley’s new litmus test about whether Roe was wrongly decided is all about. Twenty years ago it was “No more Souters!” Ten years ago it was “No more Kennedys!” Today it’s “No more Robertses!” One way or another, the Court’s true identity as a highly partisan institution will be laid bare. (Most likely when Democrats have a majority of the appointees again, as liberals reliably vote in lockstep.) Roberts can delay it, but his tactics lately may assure the ultimate failure of his mission long-term. Two: It’s remarkable that anyone inside the Court would leak details of Roberts’s deliberations to CNN, and it’s more remarkable that this isn’t the first time it’s happened. CNN also reported on Roberts’s alleged vote-switch last year on whether the new census could rightly include a citizenship question or not. The Court rarely leaks; clerks and staff know that their legal careers would be ruined if they were caught spilling secrets to reporters. Yet this is the second time in 10 months that CNN has purported to expose Roberts — and they’re promising much more to come.
Who’s spilling the beans on him? Does he have an enemy on the Court itself?