Ganja, Azer­bai­jan

Griev­ing

Newsweek - - Contents - BY @dka­plan007

Chief Jus­tice John G. Roberts JR. is smart, shrewd and funny. His mas­tery as a D.C. ap­pel­late lawyer—the best of his time, ar­gu­ing 39 times be­fore the Court—led ad­mir­ers to say his mid­dle ini­tial stood for God. (Alas, it’s “Glover.”) His rul­ings in con­tro­ver­sial cases—in­clud­ing when he was the de­ci­sive vote in 2012 to up­hold Oba­macare—play the long game, plant­ing the seeds for larger con­ser­va­tive tri­umphs his op­po­nents now don’t re­al­ize. Only weeks af­ter he was con­firmed in 2005, when a light bulb ex­ploded in the court­room dur­ing ar­gu­ment, he quipped, “It’s a trick they play on new chief jus­tices all the time!” But for all his tal­ents, few at the Court pro­fess to re­ally know him. Although he’ll chat with col­leagues at lunch about last night’s game, that’s about all any­body learns about what’s in­side.

So it was as­ton­ish­ing sev­eral years ago that Roberts let his guard down. Law clerks were tak­ing him to lunch a few blocks from the build­ing. On the walk there, to make small talk, one asked, “How do you like the job?” In­stead of pablum like, “It’s the priv­i­lege of a life­time,” he showed his real self. Roberts re­minded the clerks there had been only 16 chiefs be­fore him. Of course he was thrilled to be No. 17. But Roberts un­der­stood the his­tory of the Court. Even among the chiefs, he said, there had been only one John Mar­shall, who served for 34 years at the be­gin­ning of the 19th cen­tury. Mar­shall wrote the sem­i­nal Mar­bury v. Madi­son which es­tab­lished the Court’s au­thor­ity over the other branches—a role that the ac­tual text of the Con­sti­tu­tion hardly man­i­fested. In the con­fer­ence room of the Court, where ap­peals are de­cided and where only the jus­tices are al­lowed, Mar­shall’s por­trait hung above the fire­place, gaz­ing di­rectly at Roberts, who presided over meet­ings. Mar­shall “had the op­por­tu­nity to de­cide the great ques­tions be­cause the Con­sti­tu­tion was un­de­vel­oped,” Roberts told the clerks.

“It’s not like that any­more,” he said. “I was born in the wrong era.”

But Roberts got lucky. Jus­tice An­thony M. Kennedy re­tired in 2018, and with the swear­ing-in of Brett M. Ka­vanaugh, Roberts be­came the me­dian jus­tice. Not ex­actly a true “swing jus­tice,” which might sug­gest flam­ing

DAVID A. KAPLAN

mod­er­a­tion. He re­mained a die-hard con­ser­va­tive who came of age dur­ing Rea­gan days. On the Court, though, on most con­tentious cases he just hap­pened to have four lib­eral jus­tices to one side and four con­ser­va­tive jus­tices on the other. He would be the most pow­er­ful chief jus­tice since FDR’S term. And he was still in his early 60s, the third-youngest mem­ber of the Court. If he served un­til he was 87—the age at which Jus­tice Ruth Bader Gins­burg died in Septem­ber— he wouldn’t reach the half­way point of his ten­ure un­til 2022. While Supreme Court eras get named by whomever sits in the cen­ter seat, the Roberts Court re­ally would be. And it was that way for two years, as he cast piv­otal votes in such key ar­eas as ger­ry­man­der­ing, abor­tion and re­li­gion.

But Roberts’ luck may have run out. With Gins­burg’s death and Amy Coney Bar­rett’s ex­pected as­cen­sion, the chief jus­tice no longer is the mid­point. Bar­rett likely will be the New­to­nian equal-and-op­po­site of Gins­burg. With Ka­vanaugh, and Jus­tices Sa­muel A. Al­ito Jr., Neil M. Gor­such and Clarence Thomas, she will be part of a rock-solid five-vote con­ser­va­tive bloc. Yes, yes, you never know how a jus­tice will vote, but, no, no, you should have lit­tle doubt. That al­liance could is­sue rul­ings that over­turn Roe v. Wade, in­val­i­date the Af­ford­able Care Act, broaden the rights of gun hold­ers, al­low claims of re­li­gious free­dom to pre­vail over claims of dis­crim­i­na­tion, re­con­sider the right of same-sex cou­ples to marry—and per­haps most sig­nif­i­cantly, de­clare un­con­sti­tu­tional the en­tire fed­eral reg­u­la­tory regime. The jus­tices have al­ready made lit­tle-no­ticed in­roads on the last one. And some­day, maybe, Medi­care will be in jeop­ardy. Asked at her con­fir­ma­tion hear­ings about the con­sti­tu­tion­al­ity of the 54-year-old fed­eral pro­gram, Bar­rett de­clined to say. Too “ab­stract,” she protested. You never know if the Court would ever face the ques­tion, she said, which is true of any ques­tion, which is why she gave vir­tu­ally no sub­stan­tive an­swers—her strat­egy from the out­set.

Bar­rett, along with Gor­such and Ka­vanaugh, are surely cre­den­tialed and com­pe­tent, but that’s not why any of them were anointed by the con­ser­va­tive le­gal es­tab­lish­ment and ap­pointed by Pres­i­dent Don­ald Trump. All three were put on the Court to vote a cer­tain way in crit­i­cal cases—and in a way that ren­ders the chief jus­tice su­per­flu­ous.

Re­mem­ber that the pres­i­dent har­bors par­tic­u­lar an­i­mus to­ward Roberts. Dur­ing the 2016 cam­paign, Trump reg­u­larly trashed the chief, whom he called an “ab­so­lute disas­ter.” “He gave us Oba­macare! It might as well be called Robertscar­e!” Trump hollered dur­ing one of the de­bates. (Roberts hated it. Af­ter hear­ing his name booed on TV dur­ing the GOP con­ven­tion that year, he con­fided his in­dig­na­tion to a friend. “I’ve been a re­li­able con­ser­va­tive,” he com­plained. “Don’t they re­al­ize?”)

As pres­i­dent, Trump kept up the at­tacks, which widened to crit­i­cism of fed­eral judges gen­er­ally. Roberts fi­nally re­sponded in a highly un­usual state­ment to an AP re­porter. “We do not have Obama judges or Trump judges, Bush judges or Clin­ton judges,” Roberts wrote. “What we have is an ex­tra­or­di­nary group of ded­i­cated judges do­ing their level best to do equal right to those ap­pear­ing be­fore them.” (Never mind that on an in­creas­ing num­ber of is­sues we do have Trump judges and Obama judges: look at who ap­pointed a judge and you’ve got a re­li­able gauge how they’ll vote on a le­gal ques­tion about, say, im­mi­gra­tion.)

With Bar­rett aboard, the new me­dian jus­tice in all like­li­hood will be Ka­vanaugh. Even more than the fact of Roberts’ two years oc­cu­py­ing the po­si­tion, the change re­flects just how far right­ward the Court will shift with Bar­rett on it—and just how quickly chance can trans­form the slow­est, stead­i­est branch of gov­ern­ment. When Roberts in June voted to pro­tect the sta­tus of Dream­ers un­der the De­ferred Ac­tion for Child­hood Ar­rivals (DACA) im­mi­gra­tion pro­gram, Ka­vanaugh was on the other side. Same thing three days later when Roberts aligned with the four lib­er­als to strike down a Louisiana statute re­quir­ing physi­cians per­form­ing abor­tions to have ad­mit­ting priv­i­leges at a nearby hos­pi­tal. Two weeks af­ter, as a mo­men­tous term for the Court neared an end, Roberts and Ka­vanaugh di­verged on whether the Civil Rights Act of 1964, which pro­hibits sex dis­crim­i­na­tion, ap­plied to gay and trans­gen­der work­ers. Roberts said it did. And then in mid-oc­to­ber, Roberts voted with the three re­main­ing lib­er­als to per­mit elec­tion of­fi­cials in Penn­syl­va­nia to count some mailed bal­lots re­ceived af­ter Elec­tion Day. (His vote re­sulted in a 4-to-4 dead­lock, which let stand a rul­ing by the Penn­syl­va­nia Supreme Court.)

For Democrats and lib­er­als, the Bar­rett-for-gins­burg swap and the rush job that made it hap­pen—in turn pro­duc­ing Ka­vanaugh-for-roberts—adds in­jury to the in­sult of the events of 2016. Back then, Repub­li­cans ob­structed Pres­i­dent Barack Obama’s

“Roberts’ luck may have run out. With Gins­burg’s death and Amy Coney Bar­rett’s ex­pected as­cen­sion, the chief jus­tice no longer is the mid­point.”

nom­i­na­tion of Mer­rick B. Gar­land for the seat that Gor­such even­tu­ally took. All of that is why ex­pand­ing the size of the Court be­came a talk­ing point for so many Democrats.

Be­ing on the Supreme Court is a great gig—easy work­load, best mar­ble work­place in Wash­ing­ton, ul­ti­mate job se­cu­rity, the whole sum­mer off. Be­ing the chief is bet­ter, and be­ing the chief is best when your vote rules. What’s John Roberts to do now? The best guess is he’ll wind up shift­ing right­ward. For starters, he’s less con­strained from fol­low­ing his con­ser­va­tive po­lit­i­cal in­stincts. It was one thing to play the roles of in­cre­men­tal­ist and in­sti­tu­tion­al­ist when he could con­trol out­comes in cases and save the Court from the tri­umphal­ist in­stincts that Thomas and Al­ito display with­out shame. There’s no point in that, all the more when it means con­sort­ing with the lib­eral wing with whom he shares lit­tle by way of ide­ol­ogy.

More­over, the way of con­tin­ued im­por­tance lies in join­ing with the other five con­ser­va­tives, not with the rem­nants of the left. It’s not merely to be part of an as­cen­dant ma­jor­ity. By tra­di­tion, the chief, though he gets but one of nine votes and may not have served the long­est, is deemed the mem­ber of the Court with the most se­nior­ity. So, any­time he’s in the ma­jor­ity on a case he gets to de­cide who writes the opin­ion. That priv­i­lege of as­sign­ment is rarely ap­pre­ci­ated by ca­sual ob­servers of the Court. But the jus­tice who writes the main opin­ion can in­flu­ence the di­rec­tion of con­sti­tu­tional law for years, with a sub­tle sig­nal to fu­ture lit­i­gants here or a seem­ingly in­nocu­ous aside there. Lan­guage mat­ters. Much of the power of Wil­liam J. Bren­nan Jr., the lib­eral lion of the Court from 1956 to 1990, de­rived from his match­less abil­ity to form un­ex­pected coali­tions. Though it helped he had a lot of lib­eral lean­ers with him dur­ing many of those years, not ev­ery­one was al­ways will­ing. Bren­nan did his ca­jol­ing not with the Ir­ish charm of­ten as­cribed to him—but with words.

There’s no­body on the cur­rent Court who’s bet­ter at words than Roberts. It was that fa­cil­ity he demon­strated in his strad­dle in the 5-to-4 Oba­macare rul­ing. Con­ser­va­tives still rail about him be­ing a turn­coat—but that says more about their ob­tuse­ness than his treach­ery. In that rul­ing, Roberts was able to insert lan­guage about rein­ing in con­gres­sional pow­ers gen­er­ally (though not in that case) that a fu­ture con­ser­va­tive Court will thank him for. Dur­ing the many months that pro­duce opin­ions, coali­tions form, dis­solve and re-form. In the Oba­macare case, Roberts him­self shifted from one camp to the other, fi­nally sid­ing with the lib­er­als. To the ex­tent Roberts is now part of a group of six con­ser­va­tives—keep in mind it only takes five to com­mand a ma­jor­ity—he’ll re­al­ize there’s only so much

“The way of con­tin­ued im­por­tance lies in join­ing with the other five con­ser­va­tives, not with the rem­nants of the left.”

he can do by as­sign­ing ma­jor­ity opin­ions to him­self. The oth­ers may balk if he re­fuses to top­ple cer­tain lib­eral prece­dents or tries to play the in­sti­tu­tion­al­ist card. The oth­ers will be able to do so be­cause they don’t need his vote. But only fools would un­der­es­ti­mate Roberts’ abil­ity to re­cal­i­brate.

Other jus­tices might not care. An­tonin Scalia, for one, showed lit­tle in­ter­est in win­ning al­lies. It was more sat­is­fy­ing—and eas­ier—to write archly, be witty, take shots. Ev­ery­body loves a char­ac­ter. On the left, Wil­liam O. Dou­glas, from 1939 to 1975, was the same way—the dar­ling of acolytes, with lit­tle sway be­yond. And there are a few jus­tices in Amer­i­can his­tory who ac­quired in­flu­ence as “great dis­senters.” What in­flu­ence that John Mar­shall Har­lan (1877 to 1911) or Oliver Wen­dell Holmes Jr. (1902 to 1932) failed to earn by cham­pi­oning civil lib­er­ties in their own time they earned in pos­ter­ity. (Gins­burg has been called the Great Dis­senter of her time, but she had plenty of ma­jor­ity opin­ions and her in­stincts fa­vored con­sen­sus; if the Court has a stri­dent voice in the mi­nor­ity, it’s So­nia So­tomayor.)

Any­body who knows Roberts knows he has lit­tle in­ter­est in be­ing a lone wolf or just part of the pack. He’s renowned as an in­sti­tu­tion­al­ist be­cause he loves the Court—its his­tory, its pur­pose in con­sti­tu­tional de­sign, its mys­tery and majesty. Those are as cru­cial to him as his twin pol­icy agen­das, the dereg­u­la­tion of po­lit­i­cal cam­paigns and the erad­i­ca­tion of ra­cial pref­er­ences. But his in­sti­tu­tion­al­ism is also rooted in love for the role of the chief. In his wily way, he doesn’t let any­body forget it.

Con­sider Elena Ka­gan’s in­vesti­ture in 2010. That’s the cer­e­mony in the

Chief Jus­tice John Mar­shall. While serv­ing as the Court’s fourth chief, he had the power to shape con­sti­tu­tional law in a way de­nied any of his suc­ces­sors.

court­room in which a new jus­tice is for­mally in­stalled. It’s takes un­der 10 min­utes, but with dig­ni­taries and fam­ily there, it’s a big deal. The new jus­tice, seated at ground level in a chair used by Mar­shall, hears some nice words and then takes the bench. Roberts rec­og­nized Ka­gan as “the 101st as­so­ciate jus­tice of the Supreme Court of the United States.” That was true enough, but it wasn’t how it had been done be­fore. The prior year, So­tomayor was the “111th jus­tice,” with­out the “as­so­ciate.” Ka­gan should’ve been 112th. Roberts changed the script by sub­tract­ing the chiefs who hadn’t pre­vi­ously served as an as­so­ciate jus­tice. (Five had.) Now, there would be one tally for as­so­ciate and an­other for chief. Ka­gan no­ticed. So did the other jus­tices. They each knew their num­ber in the way ev­ery pres­i­dent knows his. Why would a chief who revered Court tra­di­tions mess with my num­ber?

Be­cause it made his rank more ex­clu­sive. Silly? Sure. Vain? A bit. But it tells you some­thing about Roberts, who has two bob­ble­heads in his cham­ber, one of Abra­ham Lin­coln and one of him­self. The cur­rent chief, with a long reign still ahead but his Court tak­ing a hard turn right­ward, will not likely tol­er­ate ir­rel­e­vance.

→ David A. Kaplan, for­mer le­gal af­fairs edi­tor of Newsweek, is the au­thor of The Most Dan­ger­ous Branch: IN­SIDE The supreme court IN The age of Trump (Crown, 2018), from which some of this ma­te­rial is adapted. His other books in­clude The ac­ci­den­tal pres­i­dent (Wil­liam Mor­row, 2001). He teaches jour­nal­ism and law at NYU and CUNY.

SHIFT­ING THE BAL­ANCE Pres­i­dent Trump and Me­la­nia Trump with Judge Amy Coney Bar­rett and her fam­ily en­ter­ing the Rose Gar­den at the White House on Septem­ber 20.

OP­PO­SI­TION Pro­tes­tors dressed as “hand­maids” on the steps of the Supreme Court on the last day of Amy Coney Bar­rett’s nom­i­na­tion hear­ing.

PRESENT AT THE CRE­ATION

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