NBC's First Monday in October preview: Roberts looking to regain control of SCOTUS by, er, following

Erin Schaff/The New York Times via AP, Pool

Sounds like good news to me, even if it might be a contradiction in terms. According an NBC News curtain-raiser on the start of the Supreme Court’s new term starting Monday, Chief Justice John Roberts wants to reassert his leadership on the direction of decisions after largely getting left behind by the other five conservative justices.


His plan? Um … agree with them, especially on upcoming cases regarding race-based preferences:

Chief Justice John Roberts could be in a position to reassert some degree of control on the Supreme Court in several race-related cases that may appeal to his vision of a “colorblind Constitution” when the justices return to action next week.

Three upcoming cases could see Roberts play a key role, showing that while the chief justice is not always the most influential voice on the 6-3 conservative-majority court, he is often in ideological lockstep with the five justices to his right. The court’s new nine-month term begins on Monday with newly appointed Justice Ketanji Brown Jackson, the first Black woman to serve on the court, taking the bench for the first time and joining the liberal minority.

The notion that Roberts is no longer the dominant figure on the court is based on the view among experts that he is an institutionalist worried about the reputation of the court who does not want to move the law to the right on contentious issues as quickly or as boldly as some of his conservative colleagues. In June, Roberts did not join the majority in overturning the 1973 Roe v. Wade ruling that legalized abortion nationwide.

So leadership in this case means getting out ahead of the jurists who are actually controlling the outcomes? That’s one way to look at it, but sounds more like the real intellectual leadership will lie elsewhere. In the last session, it became clear that Justices Samuel Alito and Neil Gorsuch led the conservative wing of the court, with strong intellectual support from Clarence Thomas. Amy Coney Barrett seemed pretty reliable, while Brett Kavanaugh appeared to occasionally defer to Roberts.


If Roberts wants to get ahead of that to write controlling opinions, though, he still has to carry the majority. He lost that battle on Dobbs, clearly hoping to get ahead of the Alito push to overturn Roe and salvage something for stare decisis. Roberts couldn’t convince his conservative colleagues, and the liberals on the court wouldn’t sign off on his centrism either in overturning Casey to keep Roe. Perhaps that experience has educated Roberts on the inflexibility of the liberal justices, or maybe he just wants to try try again.

According to one of Roberts’ former clerks, though, he may just want to make sure that people still consider him relevant:

The new cases on racial issues all ask the justices to adopt what challengers say are race-neutral approaches to the law, a line of argument that could appeal to Roberts based on his past votes and writings. If the court embraces those arguments, it would further weaken the landmark Voting Rights Act, end the consideration of race in college administrations, and strike down part of a law that gives preferences to Native Americans seeking to adopt Native American children.

“You could imagine this term giving rise to a narrative of the chief is back. I think that’s totally possible,” said Roman Martinez, a lawyer who served as a clerk under Roberts, referring to the new term as a whole.

I’m not sure that “the chief is back” is a workable narrative. He’s always been there, but the confirmation of Amy Coney Barrett moved the center of the court away from him. If he wants to join the principled conservative corps in enforcing the constitutional order over judicial policy-making, great — we’ll be happy to say “the chief is back,” if that’s what it takes. But if Roberts’ plan is to just join conservative majorities to water down their decisions, he’s going to remain less relevant in this term as he did in the last one.


Maybe Roberts plans to make a comeback as a mediator. Things are getting a bit chippy on the Supreme Court as the next term arrives, and the comity of past courts seems to be fading:

During the summer months when the Supreme Court was out of session, new arguments arose between the justices themselves on whether the court’s legitimacy, in the eyes of the American public, was imperiled after it overturned longstanding precedents in its most recent term.

Liberal Justice Elena Kagan, in a series of public appearances, said the court’s conservative majority had diminished the high court’s credibility with decisions that track Republican priorities. Chief Justice John Roberts, speaking at a separate event, retorted that the court’s decisions have no bearing on its legitimacy as it carries out its mandate to interpret the Constitution. On his side was fellow conservative Samuel Alito, author of the majority opinion in the term’s landmark case overturning Roe v. Wade, eliminating a woman’s constitutional right to an abortion.

Across the court’s history, “The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions,” Justice Kagan said last week at Salve Regina University in Newport, R.I. “The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.” …

Chief Justice Roberts earlier this month took issue with Justice Kagan’s critique.

“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he told a judicial conference in Colorado Springs, Colo. The high court’s role, grounded in the Constitution, ”doesn’t change simply because people disagree with this opinion or that opinion or disagree with the particular mode of jurisprudence,” he said.


For his part, Alito slapped back at Kagan’s critique for failing to grant the benefit of the doubt that her colleagues were not playing politics but were taking principled stands on constitutional order. In doing so, Alito hinted that the person playing politics was Kagan:

In a comment Tuesday to The Wall Street Journal, Justice Alito said: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

Indeed, especially since the dissent in Dobbs joined by all three liberal justices explicitly made a political argument for keeping both Casey and Roe in place. The dissent is refreshingly clear of any attempt to paint either decision as constitutional, instead arguing (a) it was good policy, and (b) the political blowback of reversing either or both weren’t worth it.

At any rate, expect to see the narrative “The Chief Is Back!” get lots of play in the national media. At least until Roberts actually aligns fully with his conservative colleagues, at which point the mainstream media will dust off the “extremist SCOTUS” narratives for recycling. In reality, Roberts’ comeback may only be as a referee.

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