Politico’s John Harris has a new plan to rescue the Supreme Court from the perception of partisanship. Today he argues that Chief Justice John Roberts should retire this year and give President Biden a 2nd chance to appoint a new justice before the 2022 election makes that unlikely. According to Harris, the only way Roberts can really prove the court can still be above and beyond politics.
If he believes justices are like umpires, his own retirement would be the best example — a rebuke to glaring counter-examples all around him. His fellow justices plainly don’t believe they are detached arbiters of law. That is why they try to time their retirements (as Breyer did), or hope for a delay in their deaths (as Ruth Bader Ginsburg failed to achieve) so that their successors can be selected by a president of the right political persuasion…
While Roberts sermonizes about the majesty of the law and the austere detachment of the judiciary, it is entirely reasonable for skeptics to believe that the fate of important constitutional questions is controlled by random twists of fate and purposeful political gamesmanship. It is increasingly unreasonable to believe the opposite.
From there, Harris offers three specific reasons why Roberts might find this idea appealing. “First, the chief justice can probably trust Biden more than whoever comes after.” In other words, Roberts is probably more of a centrist than either Kamala Harris or Donald Trump. If he wants to be replaced by someone less ideological, he might prefer to have Biden make that selection.
Second, “just because the Constitution allows justices to stay parked in their jobs until deep in old age does not mean it is desirable for them to make that choice.” Harris suggests that justices who remain on the court into old age inevitable form cults of personality, as happened with Ruth Bader Ginsburg and Antonin Scalia. By retiring now, Roberts could avoid that fate.
Third, Harris argues that Roberts’ ability to try to act as a swing vote to balance the court is going to become “untenable” as soon as this year when the court hands down major decisions on abortion, affirmative action, etc. Basically, Harris is suggesting Roberts may want to get out now before the true partisanship of the court is made evident.
There are so many problems with these argument that I don’t really know where to begin. I’ll start with the one argument that I think does make sense because that’s easier. I do think Harris has a point that for as much as the Justices often maintain the Supreme Court is a collegial place above politics the fact is they all still time their retirements (or try to) such that their replacement will be like-minded. Frankly, Justice Breyer has talked about this high-minded view of the court as much as anyone and yet he still retired when the activists wanted him to. He wasn’t willing to risk waiting until next year because Democrats could lose the Senate and he know that.
So I think Harris is correct that, retiring now would demonstrate some actual commitment to the idea of the court being above politics, as opposed to mere talk about that idea. And maybe that really would appeal to John Roberts because maybe he really does believe that’s, ideally, how things should operate.
But immediately after making that point, Harris changes course and argues that Roberts should retire now because Biden would choose a more like-minded replacement than whoever comes next. So having just made the case for being truly above politics he immediately undercuts it by suggesting Roberts should make a practical, political choice to retire now. I think lawyers call this arguing in the alternative, i.e. if you don’t like this argument wait for my next one which is completely at odds with everything I just said. But either Roberts wants to be above politics or he doesn’t. You can’t have it both ways.
As for Harris’ second point about not staying in the job too long, Roberts hasn’t been in the job nearly as long as Clarence Thomas (30 years) or Stephen Breyer (27 years), so why direct this at Roberts (16 1/2 years)? Clearly, he’s not suggesting Thomas retire because he doesn’t think Thomas is susceptible to this argument. But that raises a key kink in this plan. Sotomayor has been on the court for 12 years. Is she going to retire in another four? In other words, if the more ideological justices on the court, on both sides, won’t play be these rules, what’s the point of asking Roberts to play by them? What good is making a big statement about non-partisanship if no one else is going to heed it?
But Harris’ third point is where his argument really comes off the rails. His whole argument really stems from the idea that what the current court is doing is partisanship incarnate, an embarrassment to the idea of neutral judges. But of course, that’s a very partisan way to look at it. What exactly does neutrality look like? Is it the continuation of Roe v Wade in perpetuity? From the perspective of many on the right, partisans on the left have dominated and used the courts for decades to push through things they could never have passed through congress.
Take Roe as an example. The US is an outlier among western nations in allowing abortion up to 24 weeks. No one voted for that and even 50 years later about half the country doesn’t support it as it stands. Roe was instituted by liberals on the Supreme Court claiming it was an emanation from the penumbra of the right to privacy, something no one had ever noticed before in the constitution. What the court is doing (or may be about to do) is merely undoing decades of motivated, partisan reasoning which people on the left took for granted because they agreed with it. In short, maybe what we’re seeing now isn’t untenable extremism (as Harris frames it), but a return to balance and state control after a long period of partisan dominance by the left. Maybe Roberts should stick around and be part of that.