It’s Chief Justice Roberts’ court, but does he still lead?
WASHINGTON — John Roberts is heading a Supreme Court in crisis.
The chief justice has already ordered an investigation of the leak this week of a draft opinion suggesting the court could be poised to overturn Roe v. Wade, the 1973 case legalizing abortion nationwide. What comes next could further test Roberts’ leadership of a court where his vote already appears less crucial in determining the outcome in contentious cases.
“This is a time when the court is under siege, both externally and internally now,” said Roanoke College professor Todd Peppers, who writes about the court. “I just don’t think the spotlight has ever been brighter on the court in recent history.”
Roberts’ court was facing challenges even before the leak, which the chief called a “betrayal of the confidences of the Court.”
Polling has shown a notable decline in the public’s approval of the court. And there have been recent calls for term limits for the justices and for increasing the number of justices as well as for a code of ethics, particularly following reports that Justice Clarence Thomas’ wife, Virginia, implored Donald Trump’s White House chief of staff to act to overturn the results of the 2020 presidential election. Confirmation hearings for the court’s newest justices have been contentious.
The addition of three conservative justices during Trump’s presidency also means there are now five conservative justices to Roberts’ right who no longer need his
vote, and perhaps his moderating influence, to prevail in a case. The abortion decision could be another example of that, with the court’s other conservatives prepared to go further than Roberts.
Roberts, 67, has noted the limits of his position in the past. Asked during a 2018 appearance how it’s different to be chief, Roberts responded: “In many ways it’s different. In the most important it’s not. I have one vote. I participate in the decision-making of the court like any of the associate justices.”
Still, there’s a reason that the chief is called the “first among equals” and that historians refer to time periods at
the court using the chief justice’s name: the Marshall Court, the Rehnquist Court, the Roberts Court. The chief is the first to speak when the justices discuss cases at their private conference and guides that discussion. The chief decides who writes the opinion of the court when the chief is in the majority.
Roberts, an appointee of President George W. Bush, has faced other challenging times in his 16 years as chief. He’s led the court through contentious cases on gay marriage, on President Barack Obama’s health law and on Trump-era policies including building a U.S.-Mexico border wall and the travel ban.
In 2020, Roberts was in the spotlight presiding over Trump’s first impeachment trial, though his role was modest. At the beginning of the coronavirus pandemic, he led the court through a period where it decided to postpone arguments for the first time in more than 100 years and then to conduct them by telephone for more than a year and a half.
Early in his tenure, in a speech at Georgetown’s law school graduation and elsewhere, Roberts explained his philosophy in guiding the court and his preference for decisions where there could be broad agreement on narrow grounds.