Supreme Court’s Roberts is the new man at the ‘center’

WASHINGTON — Chief Justice John Roberts is the Supreme Court’s new man in the middle. It’s just that the middle may have moved well to the right.

The retirement of Justice Anthony Kennedy means Roberts probably will be the conservative justice closest to the court’s four liberals, allowing him to control where it comes down in some of its most contentious cases.

Roberts will be the justice who determines “how far they go and how fast they go,” said Washington lawyer John Elwood.

Kennedy played a similar role for many years — his votes on gay rights, abortion, the death penalty, the environment, voting rights and affirmative action basically determined the outcome of cases on which the court was divided between liberals and conservatives.

Roberts has typically been to Kennedy’s right. He did not endorse a constitutional right to marry for same-sex couples. He dissented when the court struck down Texas abortion clinic restrictions in 2016. The chief justice also was in dissent from the court’s first major climate change decision in 2007, when it held that the Environmental Protection Agency could regulate emissions of carbon dioxide and other greenhouse gases as air pollutants.

New cases on any of those issues could be before the court soon and, even if Roberts is not prepared to overrule major Supreme Court precedents, he could be in position to cut back on environmental protections as well as gay rights and abortion rights.

Smaller steps might be in keeping with Roberts’ preference for avoiding major divides where possible, and attracting votes from both conservatives and liberals. The 63-year-old chief justice may be in no hurry to move quickly, as he could be on the bench another 15 to 20 years.

“Chief Justice Roberts, more than any other justice on the court, believes in narrow rulings that attract broad majorities, answering no more than necessary to resolve a given case,” Jonathan Adler, a professor at the Case Western Reserve University School of Law, wrote on the Volokh Conspiracy legal blog.

In one sense, the Supreme Court’s immediate future could look a lot like the term that just ended. Roberts seemed firmly in control of a court that overwhelmingly went conservative in divided cases.