When Justice Anthony Kennedy retired a year ago, it was obvious that Chief Justice John Roberts—nobody’s median anything—would become the court’s center of gravity, while remaining its center of gravitas.
As Roberts’ first term as the court’s decisive vote in major political cases has drawn to a close, he has centered that gravity around upholding the legitimacy of the court as an institution—while pushing our nation’s laws as far to the right as possible without cracking the façade of that institutional integrity. In an age of crudeness and ugliness, the Last Reasonable Man still values moral seriousness over scoring points or throwing tantrums, much to the chagrin of the enemies on his own side.
If there could be a one-sentence summary of his majority opinion in the term’s census case—in which the chief joined the court’s liberals to refuse to allow Donald Trump’s commerce secretary, Wilbur Ross, to add a citizenship question to the 2020 census—it would be this: “Go ahead and lie to me, but at least do it with gravitas.” Ross and his crew of Keystone Cops had attempted to add the citizenship question that would depress Hispanic response rates and boost white voting power in future redistricting, using pretextual reasons about which the secretary lied. But his goals did not offend John Roberts’ politics; that much is clear from his opinion, which accepts the premise that Ross has the right to do what he did so long as he gives a better reason next time. They offended his sense of dignity and politesse with their sloppiness. Lie better next time. That’s the real holding of this case, and it tells you what you need to know about the chief.
To the extent Roberts is the “swing” vote, the chief justice is a very, very different swing voter than Kennedy. When Kennedy defected to join with the liberals, he was all in, ideologically and emotionally. Whether he was the fifth vote to bless marriage equality or a reluctant vote to prop up affirmative action or the right to choose, he consulted with his own conscience and made the most dignity-affording call he could muster. A conservative at heart, Kennedy was also a romantic, with grandiose notions about the centrality of the court in public life. Kennedy’s votes were about Kennedy.
Roberts is not a romantic. He is a tactician and an able steward of the court’s path through troubled political times. It is true that he is principally concerned about the court’s legacy and his own, but it is also true that he knows exactly which lines to push before producing a public outcry, and precisely how far to push them. He was fine with Donald Trump’s racist tweets and statements that became the travel ban because they were ably covered by government lawyers (the third time around). He would not have been fine having his name tacked onto the shoddy lawyering and feeble cover-up produced by the DOJ lawyers in the census case. He will, should the opportunity arise, be mollified with better pretexts next time. Appearances matter a lot to the chief justice, and the appearance of blatant corruption and craven lawlessness offends him.
John Roberts is, as Joan Biskupic reveals in her new biography of the man, a fundamentally political animal, and he will triangulate against politics in ways that make him an enemy to the right and a much more lethal long-term threat to the left. He will do it decorously, genteelly, and with moral seriousness not in evidence in, say, Justice Clarence Thomas’ accusations that a federal judge in the census case might as well have been a JFK conspiracy theorist. Thomas’ conservatism has arrived at a place of the theater of grievance. Roberts will continue to try to counterprogram that with the appearance of studied fairness and moderation. Does it mean that the court will continue to chart a middle course under Roberts’ leadership? Hardly. It was not charting a middle course when Kennedy held the tiller, either. But it does mean that at moments of greatest political turmoil, when the court is in the crosshairs because governmental bad behavior or Trumpian bungling puts it there, Roberts will take public sentiment into account and modulate the uproar.
There is at least some reason to believe that recent census revelations—indicating that the citizenship question had been added thanks to the overtly racist and white supremacist values of a Republican operative—made blessing the question that much more unpalatable to the canny chief. There is, similarly, reason to believe that states passing cruel and unconstitutional abortion bans will make it harder for the chief to vote in support of TRAP laws that shutter clinics without technically banning abortion. In short, the more badly Trumpists (like Ross) and Trump enthusiasts (like Thomas) behave, the more likely Roberts will be drawn to a center, or at least to an appearance of center.
Because there is, in fact, no real center to this court. We haven’t had a truly centrist justice since Sandra Day O’Connor retired in 2006; Kennedy was, as Jeffrey Toobin famously put it, “not a moderate but an extremist—of varied enthusiasms.” Roberts sometimes plays the role of a centrist, as when he votes to push Eighth Amendment law one centimeter to the left or tells the Trump administration to lie better when it wants to undermine civil rights. But when Roberts casts a “liberal” vote, it’s cramped and qualified, sometimes laying the groundwork for a doctrinal shift to the right. When he casts a conservative vote, meanwhile, it’s often sweeping and momentous, overturning decades of progressive precedent. Where Kennedy veered wildly left and right, the chief’s swinginess is largely a one-way ratchet. He feeds liberals a few crumbs, then breaks their hearts.
Indeed, if Kennedy is to have a swingy successor, it won’t be Roberts or even Kennedy’s replacement on the court, Justice Brett Kavanaugh, who cast staunchly conservative votes throughout his first term. It might be Justice Neil Gorsuch. Make no mistake: Gorsuch is a rock-ribbed conservative who is no consistent friend to criminal defendants. But his skepticism of state power occasionally eclipses his Republican instincts. Twice this term, Gorsuch joined the liberals in 5–4 decisions, authoring opinions that led his conservative colleagues to accuse him of triggering an earthquake in constitutional law. After Gorsuch invalidated one criminal law as unconstitutionally vague, Kavanaugh howled that he had “destabilize[d] the criminal justice system” and led the court “off the constitutional cliff.” After Gorsuch struck down another law depriving defendants of a jury trial, Justice Samuel Alito warned that his “dangerous” opinion had “potentially revolutionary implications.”
Do not expect Roberts to write an opinion that spurs his conservative colleagues to accuse him of being a liberal revolutionary. Don’t expect Gorsuch to do it, either, when a case has political implications. The five justices who shut partisan gerrymandering claims out of federal court forever on Thursday will stick together in the big, front-page cases unless Republican officials lie so egregiously, or break the law so incompetently, that Roberts cannot rule in their favor without embarrassing himself and bringing shame upon the court. Avoiding humiliation, personal and institutional: That appears to be Roberts’ M.O. in the Trump years. Which means the Supreme Court will do everything it can to shore up the Trump administration’s pro-business, deregulatory, anti–civil rights, pro–religious establishment, and vote-suppressive goals without openly degrading itself in service of the president. If you’re counting small blessings, that’s more than Senate Republicans have been willing to do.
In a world in which the norms of trust, civility, fact finding, and good faith are sliding away, as the president tweets out preschool insults from the G-20 and senators “joke” about third terms for Trump, John Roberts has shown tolerance for the ugliness that swirls around the court’s neighborhood. But his tolerance isn’t infinite. If Republicans learn the lesson of the 2018 term, it’s that the chief justice is on their side, until and unless they do it ugly. He has limits, which is more than one can say for most of the GOP.
