As the debate over whether President Barack Obama should be allowed to nominate someone for the Supreme Court grows ever more rancorous in the halls of Congress, it is no doubt echoing across the street in the quieter quarters of the Supreme Court. There, the people arguably most affected by the vacancy left by the late Justice Antonin Scalia — the eight justices still on the bench — can hide away from the public eye and avoid weighing in on whether lawmakers should consider Obama’s nominee to replace him.
Cloistered away in the justices’ chambers is Chief Justice John Roberts, whose already high-stakes task of navigating the court through landmark cases has grown more complicated as Scalia’s death has catalyzed a full-fledged political showdown.
The current situation has put the chief justice in an awkward position. Senate Republicans have picked this fight with the White House in the hopes that a future GOP president can ultimately pick a Scalia successor, restoring the conservative majority on the Supreme Court. But in doing so, they also embroiled the court in the very partisan contentiousness from which Roberts tries to insulate the court.
“He’s in an interesting place, personally, because on the one hand, I’m sure he would like a reliable conservative vote, and on the other hand, I can’t imagine he wants to operate with a court of eight for two terms, which is what it effectively would be,” Barry Friedman, a professor at the New York University School of Law, told TPM. “My guess is he would rather have the position filled and get the court out of this particular spotlight.”
Unless Roberts makes the unlikely decision to speak out about the hardball Senate Republicans are playing, we won’t know how he feels about it. And even if he did object to their refusal to restore the full bench, at least for another year, saying so publicly might only make matters worse. But a review of Roberts’ record suggests the current standoff presents competing interests for the chief justice, and legal experts argue, at the very least, he would be torn.
“In his heart of hearts, he probably has views on these things. It would be very hard not to,” Arthur Hellman, a professor at the University of Pittsburgh School of Law, said in an interview with TPM. “He really is very concerned about preserving the court’s legitimacy and its stature as an institution.”
In his own confirmation hearing Roberts sold himself as a Supreme Court justice who would “umpire” and one that doesn’t “make the rules” but would “apply them.” His insistence that the court is not a place for politics has been a common theme in his public assessments of its role.
“We don’t work as Democrats or as Republicans,” Roberts said at a forum in early February, explaining why the process by which judges are confirmed “is not functioning very well.”
There’s no doubt that Roberts has been a key player in the court’s conservative majority — a majority that has gutted civil rights law, expanded the power of corporations and made it easier for women to be denied access to contraceptives — and progressives scoff at his self-characterization when he was confirmed that he would merely call balls and strikes.
“It doesn’t begrudge your cynicism that he’s saying, ‘I’m an umpire!’” said Charles Gardner Geyh, an Indiana University School of Law professor and author of “When Courts and Congress Collide: The Struggle for Control of America’s Judicial System”
“But that doesn’t mean he isn’t concerned about his legacy as a chief, that he is not concerned about the institutional health of the judiciary, that he’s not worried about this becoming a shit show,” Geyh told TPM.
Geyh and others pointed to some of the more surprising actions Roberts has taken since joining the court.
“There are these moments in time that the institution matters to him a great deal and trumps his ideological impulse,” Geyh said.
The two most obvious examples are the votes he cast to uphold Obamacare in 2012 and 2015, which prompted some Republicans to label Roberts a traitor to the cause. There has been some speculation that, in one of Obamacare cases, he changed his vote out of concerns that the court’s reputation was at stake.
“I have no reason to think that. I certainly hope it’s not true,” Hellman said of the rumors. “But the very fact that people have speculated along those lines tells us something about the perception that had been generated by his own statements over the decade he has been chief justice.”
There was also his lesser-known opinion issued in last year’s Williams-Yulee case, in which he upheld a state ban on judges soliciting campaign funds. The four conservatives dissented, and court observers were shocked that Roberts — whose court ushered Citizens United — had authored a majority opinion that rolled back the influence of money in elections.
“He has parted from a partisan line in a way that really indicates that he is concerned about judges and judging, and the role of courts as institutions and their limited role,” Geyh said.
Additionally, in 2010, Roberts included in his annual chief justice report on the federal judiciary a section decrying the “persistent problem” of congressional obstruction creating mass vacancies on lower courts, which he said “created acute difficulties for some judicial districts.”
He blamed both parties for the pattern, but nonetheless, the statement came during Obama’s presidency as Senate Republicans had amped up their obstruction of his judicial nominees.
“He’s not playing politics to the extent of laying low until we have a Republican president who can name conservative judges,” Geyh said. “That’s not what he’s about.”
Roberts, however, could also very well remember when he himself was a victim of Senate obstruction, in his case, wrought by Democrats under President George H.W Bush. Bush named him for the U.S. Court of Appeals for the District of Columbia Circuit in 1992, but the Senate Judiciary Committee, led by then-Sen. Joe Biden (D-DE), did not even grant him a hearing.
Northwestern University law professor John McGinnis argued that having lived through that experience, Roberts would be “wise to the ways of Washington.”
“He’d be delighted, I’m sure, if the parties would all agree,” McGinnis said. “But he’s very much an old Washington hand, he understands this is very unlikely to happen. So this is not a surprise to him and I doubt that it’s unduly upsetting.”
Regardless, there are many reasons Roberts would not be so inclined to publicly express whatever he is feeling now. Every statement made about Republicans blockade of the next Supreme Court nominee is being treated as political gamesmanship.
“It will be simply be used as cannon fodder in this debate, and make things worse rather than better,” Geyh said.