And now is the time for the Roberts court to act

Sunday Star - - OPINION - COKIE & STEVEN ROBERTS

At his White House swear­ing-in cer­e­mony,

Jus­tice Brett Ka­vanaugh de­scribed a role for the Supreme Court that was of­ten ob­scured dur­ing his ran­corous con­fir­ma­tion process.

“It is not a par­ti­san or po­lit­i­cal in­sti­tu­tion,” the new jus­tice re­minded the crowd of well-wish­ers. “The jus­tices do not sit on op­po­site sides of the aisle. We do not cau­cus in sepa- rate rooms.”

But Pres­i­dent Trump took a very dif­fer­ent tone, high­light­ing the par­ti­san an­i­mos­ity Ka­vanaugh tried to put be­hind him and ac­cus­ing Democrats of pur­su­ing “a cam­paign of po­lit­i­cal and per­sonal de­struc­tion based on lies and de­cep­tion.”

Which spirit will gov­ern the court that Ka­vanaugh now joins? Will it fol­low the ideal he es­poused, re­main­ing in­su­lated from the po­lit­i­cal frays of the day? Or will it be­come the court Trump and his fol­low­ers are pray­ing for, com­mit­ted to fol­low­ing a right-wing agenda on is­sues rang­ing from abor­tion and same-sex mar­riage to gun rights and af­fir­ma­tive ac­tion?

The per­son who will most in­flu­ence the an­swer to that ques­tion is Chief Jus­tice John Roberts. Yes, he be­longs to a five-mem­ber con­ser­va­tive bloc all ap­pointed by Repub­li­can pres­i­dents. But dur­ing his 13 years as chief, Roberts has oc­ca­sion­ally strayed from ide­o­log­i­cal pu­rity while demon­strat­ing a deep con­cern for the rep­u­ta­tion of the court.

And he now as­sumes ex­tra­or­di­nary lever­age, po­ten­tially serv­ing as the cru­cial fifth vote on many close de­ci­sions while also choos­ing who writes the ma­jor­ity opin­ion in those cases. “The spot­light will shift to the chief jus­tice, who will be viewed, rightly or wrongly, as the swing jus­tice,” Thomas Dupree, a former top of­fi­cial in the Bush Jus­tice De­part­ment, told Fox News. “In many ways, I think this would be a role the chief jus­tice would wel­come.”

Vikram Amar, dean of the Uni­ver­sity of Illi­nois law school, said of Jus­tice Roberts in the Wall Street Jour­nal: “He does have a sense of his­tory and how the court will be judged. It may fall on Roberts to be even more of a self-con­scious brake on the court than he was be­fore.”

Many lib­er­als re­main deeply sus­pi­cious of Roberts, and for good rea­son. He’s writ­ten some deeply dam­ag­ing opin­ions, start­ing with his evis­cer­a­tion of the Vot­ing Rights Act, and he fiercely dis­sented from the court ma­jor­ity that le­gal­ized same-sex mar­riages.

“This is a dan­ger­ous, even scary, mo­ment for the court,” thun­dered Wash­ing­ton Post colum­nist Ruth Mar­cus, “one in which Ka­vanaugh’s ad­mo­ni­tion against see­ing the court in par­ti­san terms seems laugh­ably naive.”

But the “sense of his­tory” Amar de­scribes can change and shape a jus­tice. And when Roberts pro­vided the de­cid­ing vote to up­hold most of the Af­ford­able Care Act, con­ser­va­tives led by Trump were apoplec­tic. “Jus­tice Roberts re­ally let us down,” can­di­date Trump told a cam­paign rally in De­cem­ber of 2015. “What he did with Oba­macare was dis­grace­ful.”

More­over, Roberts (who re­ceived 78 Se­nate votes, in­clud­ing 22 from Democrats, in 2005) has reg­u­larly ex­pressed dis­may over the politi­ciza­tion of the court. “We don’t work as Democrats or Repub­li­cans, and I think it’s a very un­for­tu­nate per­cep­tion that the pub­lic might get from the con­fir­ma­tion process,” he told a Bos­ton au­di­ence in 2016.

Com­ments like that lead some le­gal schol­ars to hope the chief will act as a brake on fel­low con­ser­va­tives. Writ­ing in the Wash­ing­ton Post, two law pro­fes­sors — Lawrence Baum of Ohio State and Neal Devins of Wil­liam and Mary — noted that as chief jus­tice, Roberts “has a spe­cial re­spon­si­bil­ity re­gard­ing the court as an in­sti­tu­tion.”

“Through his pre­sid­ing role in the court’s con­fer­ences and his as­sign­ment of court opin­ions, he might re­dou­ble his ef­forts to find com­pro­mises that avoid party-line votes in cases,” they wrote. “And to the same end, he may con­sciously soften his own po­si­tions on some is­sues.”

Jus­tice Elena Ka­gan, speak­ing re­cently at Prince­ton, pointed out that for the last 30 years — start­ing with San­dra Day O’Con­nor and con­tin­u­ing with An­thony Kennedy — the court has had a jus­tice in “the cen­ter,” some­one who didn’t act in a to­tally pre­dictable way and of­ten de­ter­mined the out­come of closely ar­gued cases.

Those swing jus­tices played a very use­ful role, Ka­gan shrewdly ob­served, be­cause they “en­abled the court to look as though it was not owned by one side or an­other, and was in­deed im­par­tial and neu­tral and fair.”

How does the chief jus­tice want the Roberts Court to be re­mem­bered? As “owned by one side,” or as “im­par­tial and neu­tral and fair”? How he an­swers that ques­tion could have a pro­found im­pact on the na­tion’s law and pol­i­tics for the next gen­er­a­tion.

Steve and Cokie Roberts may be con­tacted by email at steve­cokie@gmail.com.

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