Leadership test at America’s top court
John Roberts is heading a Supreme Court in crisis.
The US chief justice has already ordered an investigation into the leak this week of a draft opinion suggesting that the court could be poised to overturn Roe v Wade, the 1973 case legalising abortion nationwide. What comes next could further test his leadership of a court where his vote already appears less crucial in determining the outcome of 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.’’
The Supreme Court was facing challenges even before the leak, which Roberts called a ‘‘betrayal of the confidences of the court’’. Speaking yesterday at a judicial conference in Atlanta, Roberts called the leak ‘‘appalling’’, according to CNN.
Polling has shown a notable decline in the American public’s approval of the court. 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’s 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.
The chief justice 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 Trumpera policies including building a USMexico border wall and a travel ban on Muslims.
In 2020, Roberts was in the spotlight presiding over Trump’s first
‘‘The court is under siege, both externally and internally.’’
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 phone for more than a year and a half.
Artemus Ward, a professor at Northern Illinois University who is one of the editors of a book of scholarly research on chief justices, said Roberts had been ‘‘trying to achieve consensus, trying to rule narrowly’’.
But following the death of Justice
Professor Todd Peppers, Supreme Court scholar
Ruth Bader Ginsburg, a liberal, and her replacement by conservative Justice Amy Coney Barrett, ‘‘Roberts’ vote is less powerful’’, Ward said. There are now five conservative votes even without him.
There’s been some evidence of the impact of that already.
Before Ginsburg’s death, Roberts joined with the court’s four liberals to reject a challenge to attendance limits California imposed on religious services because of the coronavirus pandemic. But about a month after Barrett joined the court, the justices ruled 5-4 the other way in a case about similar limits in New York, with Roberts and the liberals in dissent.
In September last year, the court decided 5-4 not to block a new Texas law banning most abortions in the state. The dissenters were once again Roberts and the three liberal justices.
It was the same lineup in February when the Supreme Court put on hold a lower court ruling that
Alabama must draw new congressional districts before the 2022 elections to increase Black voting power. And in April, when the court reinstated a Trump-era water rule. ‘‘Roberts Has Lost Control of the
Supreme Court,’’ was the title of an article written that month by professor Stephen I Vladeck of the University of Texas School of Law.
It remains to be seen how divided and how sweeping the Supreme
Court will be in other decisions due to be released before the court breaks for the northern summer. It is also unknown how closely the final opinion in the abortion case will mirror the leaked draft.