With swing vote, chief justice has great influence
WASHINGTON — In a series of stunning decisions over the past two weeks, Chief Justice John Roberts has voted to expand LGBTQ rights, protect the young immigrants known as Dreamers and strike down a Louisiana abortion law. In all three decisions, he voted with the court’s four-member liberal wing.
On Tuesday, he joined his usual conservative allies in a 5-4 ruling that bolstered religious schools.
The decisions may be hard to reconcile as a matter of brute politics. But they underscored the larger truth about Roberts: 15 years into his tenure, he now wields a level of influence that has sent experts hunting for historical comparisons.
“Roberts is not only the most powerful player on the court,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “He’s also the most powerful chief justice since at least 1937.”
An incrementalist and an institutionalist, the chief justice generally nudges the court to the right in small steps, with one eye on its prestige and legitimacy. He is impatient with legal shortcuts and, at only 65, can well afford to play the long game.
Taking the place of Justice Anthony Kennedy, who retired in 2018, at the court’s ideological center, Roberts’ vote is now the crucial one in closely divided cases. To be both the chief justice and the swing vote confers extraordinary power.
His pivotal role on the court could be fleeting. Were President Donald Trump able to appoint a replacement for Justice Ruth Bader Ginsburg, who is 87, or Justice Stephen Breyer, who is 81, the chief justice would almost certainly be outflanked by a conservative majority on his right.
A President Joe Biden, on the other hand, may have fewer opportunities to reshape the court in the short term.
Replacing Ginsburg or Breyer with another liberal would not alter the court’s ideological balance or the chief justice’s influence.
And that would mean Roberts would continue to assign the majority opinion when he is in the majority, which these days is almost always. He uses that power strategically, picking colleagues likely to write broadly or narrowly and saving important decisions for himself.
In his first 14 terms, he was in the majority about 88 percent of the time. So far this term, that number has shot up to 98 percent, Epstein found.
“Even more stunning,” she said, “is that Roberts voted with the majority in 96 percent of the nonunanimous decisions, compared to his average of 80 percent. This is the best showing by a chief justice since at least the 1953 term.”