With less than three months until the election, President Donald Trump’s supporters need a Supreme Court boogeyman. Given the high court’s primacy for Republicans at the voting booth, one reliable campaign message has inevitably cropped up every presidential election in the past five decades: that the court teeters on the brink of liberal control. That’s why the conservative legal movement invents a new villain or turncoat at the Supreme Court seemingly every election cycle. Whether it was Harry Blackmun, David Souter, Sandra Day O’Connor, or Anthony Kennedy, the fastest way to mobilize an evangelical base that cares almost exclusively about overturning Roe v. Wade is to pretend that the court is always mere seconds away from sanctioning “late-term” abortions on the front steps of the court building itself. After a term in which the conservative-controlled court punted on abortion and gun control, and even expanded certain LGBTQ rights, this year’s designated villain is shaping up to be Chief Justice John Roberts.
In a four-part series of extraordinary, exclusive pieces published on CNN.com last week (disclosure: one of us serves as CNN’s Supreme Court analyst), our colleague Joan Biskupic reported on details about the case conferences and dispositions of various opinions at the end of this recent term. It’s evident that at least one justice talked to Biskupic, who had three sources. Nobody on the outside knows who leaked or why, but the leaks (and the messaging around them) make it clear that repurposing arguments about John Roberts as a faithless conservative is central to the election project. But it might not work this time.
One example, this week, came in a cough-out-the-nose funny piece in Newsweek, in which law professor Josh Blackman, a highly visible conservative legal commentator, demanded that the chief justice accept responsibility for the leaks and step down. Roberts, in Blackman’s view, is responsible for the damage done to the court by this reporting. “Unless he can rise to the occasion, and plug these leaks, the Roberts Court will tear itself apart,” he wrote. “A Supreme Court divided cannot stand. If Roberts cannot unite the Court, he must leave it.” The logic appears to be self-fulfilling. If whoever leaked to Biskupic did so to make Roberts look bad, calling for his resignation based on those leaks is in precisely as much bad faith as the leaks themselves. Indeed, there have been leaks out of the high court for as long as there’s been a high court, and nobody has demanded that the chief justice resign for the good of the court, unless they want the chief justice to resign for the good of themselves.
For Republicans, messaging around America’s secular church simply works. Voters who care about ending abortion, protecting phantom assaults on their gun ownership, and restricting LGBTQ rights above all else need to keep believing the court’s been lost, not captured. That’s why conservatives were so delighted to bury Roberts and Neil Gorsuch as closet leftists at the close of this term, even as progressives pointed out just how unprogressive their handful of surprising votes actually were.
But this started long before John Roberts signed on to an abortion decision in June Medical and Neil Gorsuch held that employers can’t discriminate on the basis of sexual orientation or transgender status. Trump and Sen. Ted Cruz campaigned in 2016 on unseating Roberts, freshly deemed a liberal for upholding Obamacare, while Senate Republicans crowed about refusing to seat Merrick Garland that same year. The playbook hasn’t changed for decades. Fake a Supreme Court on the brink of being lost forever, gin up the dark money ads, and the evangelical vote is a lock. It’s a win-win tactic because you can stir up heaps of money and voters when you face the loss of a potential seat, and you can stir up money and voters when you fill a contested seat. You can even stir up money and voters after you’ve prevented a seat from being filled.
Trump’s problem is that, having seated two staunch conservatives, thereby rendering the court definitively conservative in a way it has not been since at least the 1930s, he may now be losing the argument. Evangelical support for him has dropped. Some of the vestiges of a decades-old conservative legal movement is in retreat from him. And just as importantly, John Roberts refuses to play the part of coherent jurisprudential villain. While the chief justice has remained a reliably conservative fifth vote for expansive claims of religious liberty (and against efforts to expand access to voting) this term, he also managed to steer the court through partisan divisions this year in ways that both kept the court out of the news this summer and took serious conversations about court packing off the table before the 2020 election. Gallup polling shows that, not two years removed from the bitterly acrimonious confirmation of Justice Brett Kavanaugh, the court’s approval rating is at the highest rate in a decade. Roberts has rather masterfully dodged Donald Trump’s swipes and tantrums, as well as occasional threats from the conservative legal movement that has tasted a hard-fought victory at the high court, yet found that it’s still made of tofu, or perhaps just Styrofoam. Roberts remains in command of the court and the media narrative.
This hasn’t stopped many stalwarts in the conservative legal establishment from fundraising on Roberts’ perceived squishiness. Look no further for increasingly transparent examples than Sen. Josh Hawley, who now promises an abortion litmus test to end all abortion litmus tests. Look to an ever-more ghoulish Senate Majority Leader Mitch McConnell, who can’t stop thinking about replacing a still-living Ruth Bader Ginsburg to goose the vote, or to Senate Judiciary Committee Chairman Lindsey Graham, who wants to see “where the market is” before making a call on filling the not-yet-empty Ginsburg seat. But this is all small ball, because Roberts and the court must be made into an election-year issue this year.
Meanwhile, mainstream Democratic politicians still haven’t figured out how to run against the court, a source of increasing frustration to progressives. They still cannot conjure a message about the court or a theory of the court. It’s been more than a half-century since a majority of the justices have been appointed by Democratic presidents. And even when Anthony Kennedy consistently swung rightward, or when Elena Kagan or Stephen Breyer threw in with the court’s conservatives, as they did in several high-profile cases this term, Democrats don’t target them for impeachment, or call for replacing them with truer hearts. The Democratic primary may have briefly touched on hypothetical structural reforms to the court, but those discussions quickly subsided. Liberals seem, in short, willing to embrace the moderate representatives on the court that they have had for years, while Republicans refuse to accept that they’ve already won.
Blackman himself even coined a term—“Blue June”—to describe both the surprisingly nonconservative bent of many of the court’s major end-of-term decisions and his own emotional reaction thereto. In that respect, the irony of his critique is that precisely the same conservative frustration with this term’s rulings is almost certainly what precipitated these leaks in the first place. And after the chief justice turned away a church’s request to block a Nevada COVID-related occupancy limit, Georgetown law professor Randy Barnett lamented it as proof of “what we’ve known since at least 2012: 5 is not enough.”
Five is not enough. Well then. We’ve been on the record for some time now arguing that you can’t claim to be out fighting for judicial independence while you’re also trashing the judiciary. Demanding that justices who fail to meet your purity tests step down on the transparent pretext that you’re fighting for the prestige of the judicial branch is just old wine moldering in really old bottles. Even before he became the court’s median vote upon Kennedy’s retirement, John Roberts has seemingly struggled to preserve both his own prestige and that of the entire judiciary, and yet he’s managed to do something in this two-front war that few could have predicted. Not only did he rope-a-dope a president who could never manage to take yes for an answer, he may also have saved the court from a conservative legal juggernaut that can similarly never be satisfied.