Kennedy’s retirement may nudge Roberts to center
Chief justice could be next Supreme Court swing vote
WASHINGTON – When the Supreme Court hears cases, delivers opinions or even poses for a group photo, Chief Justice John Roberts is the man in the middle – literally.
After the retirement of Associate Justice Anthony Kennedy, the court’s most influential member by virtue of his “swing vote” status, Roberts will move to the middle figuratively as well.
To replace Kennedy, President Donald Trump is determined to nominate someone similar to the late Justice Antonin Scalia and his successor, Justice Neil Gorsuch, who won the president’s nod last year. Roberts, to the occasional chagrin of conservatives, is a bit more flexible than that.
This, after all, is the chief justice who rescued President Barack Obama’s signature health care law from extinction in 2012, when even Kennedy voted to scrap it. On rare occasions before and since – though not so much in the term just ended – he has cast his lot with the court’s liberal justices.
If Trump’s nominee becomes the 14th justice named by a Republican president out of the past 18, the middle of the court should shift to the right.
“There’s little doubt right now that with Kennedy’s departure, the chief becomes the center of the court,” says Richard Lazarus, a professor at Harvard Law School and Roberts’ roommate there in the 1970s. “It doesn’t mean the chief changes. It just means the center changes.”
Under Kennedy and Justice Sandra Day O’Connor, who retired in 2006, the court’s center of gravity shifted depending on the subject. They often voted with liberals on abortion, affirmative action, gay rights and other social issues.
Roberts has sided with liberals on some issues, but they are less ideological. Like Kennedy, he’s a stickler for freedom of speech. Like Scalia, he often defends the rights of criminal suspects.
Roberts and Kennedy voted together 90 percent of the time in the term that just ended.
The similarity pretty much ends there. Unlike Kennedy, Roberts has been a firm opponent of abortion, affirmative action and gay rights in his rulings.
He sided with the court’s majority in the landmark Citizens United case that allowed for unlimited independent corporate spending on elections, and he wrote the decision striking down a key section of the Voting Rights Act. When Kennedy’s ruling expanded same-sex marriage nationwide in 2015, Roberts spoke from the bench in dissent, the only time he has done so.
“On the most hot-button, controversial issues – affirmative action, abortion, gay and lesbian rights, the Second Amendment – Roberts is with the conservatives 100 percent of the time,” says Erwin Chemerinsky, dean of the University of California-Berkeley School of Law. “Roberts is now at the center of the court, but that just reflects how conservative the Supreme Court is going to be,” says Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center, who led a study of the Roberts Court when it reached the 10-year mark in 2015.
There are several reasons why Roberts may stand apart from the crowd:
He favors incremental changes in the law, rather than swinging for the fences, as Kennedy sometimes did on issues such as campaign financing and same-sex marriage. He respects the court’s precedents, which could stymie or at least stall conservatives eager to overrule the Roe v. Wade decision that legalized abortion in 1973. He is deeply concerned about the court’s image, from appearing nonpartisan to letting litigators get a word in edgewise between justices’ rapid-fire questions. The question is whether Roberts’ cautious instincts will stand in the way of a conservative juggernaut. Most liberals fear not. “This is what conservatives have been dreaming about since Richard Nixon ran for president,” Chemerinsky says.
“Roberts is now at the center of the court, but that just reflects how conservative the Supreme Court is going to be.”
Brianne Gorod Constitutional Accountability Center