Chief Justice John Roberts sounds distraught. After Friday’s ruling by his five fellow conservatives on the Supreme Court allowing Texas’ S.B. 8 bounty system to stand for now, Roberts wrote that his colleagues had pushed the entire system of judicial review to the precipice of disaster.
“The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings,” Roberts wrote in perhaps the most hair-on-fire moment of his career. Prohibiting federal lawsuits against judges and clerks who might in practice enforce S.B. 8’s now apparently constitutional nullification scheme—which allows private individuals to sue anyone who “abets” an abortion into oblivion without federal judicial oversight—threatened to make the “constitution itself” into a “solemn mockery.”
“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” wrote Roberts in an opinion joined by the court’s three progressives. The Texas law effectively bans abortions in the state.
“Nullify … Court rulings.” “Solemn mockery.” “Constitutional system … at stake.” That all sounds … pretty bad!
The chief justice is not exaggerating. By blessing even an altered version of Texas’ bounty-based scheme to upend Roe v. Wade, the court’s five ultraconservatives are clearly opening the door for state nullification of other rights. That issue itself came up during oral arguments, as well as in part of an amicus brief by a guns right group that feared liberal states might put constitutional rights cherished by conservatives, such as virtually unlimited Second Amendment rights, in the crosshairs.
Hardcore Trumpists might scoff at the warnings of the chief justice, who they have long viewed as a turncoat for his decision to cast a fifth vote to uphold Obamacare and for other relatively moderate moves. If Democratic officials in blue states have the nerve to try to attack GOP-favored Constitutional rights via a similar scheme, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett can simply reassess their positions. After all, the constitutional right to an abortion is likely about to go out the window based on their five votes when Dobbs vs. Jackson Women’s Health Organization is decided in about six months, so what actually have these five justices blessed in the meantime? Certainly not the right for California to offer $10,000 bounties on anyone who abets the sale of a handgun, which would threaten a real right unlike the fictional abortion protection that is about to go the way of the dodo bird? Inconsistency ultimately only really hurts you when you don’t have the votes, and the Federalist Society now owns this court with one, two, three, four, five of them.
I get it! The right stacked the court with hardcore partisans elevated under practically criminal circumstances, and now they have certain expectations. There’s no reason to let some nagging by that black-robed weenie change anything they might do to recraft the entire constitutional system according to Samuel Alito’s Fox News–imprinted worldview.
Roberts, though, is an independent actor. Judged by his previous lurches—however mildly—to the middle, the chief justice appears very much to care about the court’s collapsing public legitimacy. And, again, if you read the words that he wrote in his concurring opinion in the S.B. 8 case, he also has genuine fears not just about how all this slash and burn will play with the public, but also about what it means for our entire “constitutional system.”
If Roberts does actually mean all those dire warnings in his desperate opinion on Friday, then he does have one option that would go a significant way towards curing many of the concerns he professes to have about the court’s legitimacy, and the potential nullification of its rulings, and the status of our very republican structure: Roberts could retire.
You might ask: Why would anyone retire from one of the most powerful jobs in the world at the age of 66 and with lifetime tenure?
That’s a fair point, and I don’t very well imagine the chief justice will take me up on my humble proposition.
It would clearly, however, resolve a good deal of the problems he professes to have with the entirety of our constitutional system now being “at stake.”
First, it’s not historically given that just because the justices have life tenure that they stay in the job forever. Supreme Court justices often retire. In fact, in the not too recent past it wasn’t unusual for them to retire during the tenure of a president of the opposite party to the one that appointed them, which would be the case if the Republican-appointed Roberts retired right now with Democrat Joe Biden in the White House. (As Scott Lemieux wrote in the Washington Post in 2019, “for the most part, strategic resignations were not an issue for much of the 20th century.”) Heck, even popes sometimes retire. Historically speaking, it would not be crazy, or even bizarre, for Roberts to retire early from this job.
Second, retirement would clearly alleviate many of the questions the court faces about its legitimacy that Roberts now says he’s very concerned about. If Roberts retires now, for instance, he gives weight to the argument his Democratic-appointed colleague Stephen Breyer has used to resist calls for his own retirement—that the court is actually not a hopelessly broken and partisan institution and that justices strategically resigning when a preferred president is in the White House is what really damages the court’s legitimacy. If Roberts retires when a Democrat can replace him, it proves Breyer’s point that the system still works! Further, Roberts going now would basically amount to an offer of restitution for the Supreme Court seat that was stolen by Mitch McConnell when the Senate refused to hold a hearing on Barack Obama nominee Merrick Garland for nearly a year at the end of his presidency and then seated Amy Coney Barrett with weeks remaining in Donald Trump’s tenure.
To be clear: At this point, the biggest point of contention around the court’s legitimacy is that stolen seat. In one fell swoop, Roberts could negate that argument almost entirely. As such, his retirement would tamp down any lingering calls for court reform, which are weak now but could gain strength as the court further lurches to the right.
Third, this is likely the best method Roberts has of pushing the court in the face-saving direction he actually wants it to go, where it gradually but significantly moves the constitutional law to the right, only without overturning the entire apple cart all at once. If Roberts is replaced by a fourth progressive jurist, Justices Kavanaugh and Coney Barrett might feel some pressure to pivot to finding any sort of middle ground on major issues with tactically moderate progressives, such as Elena Kagan. After all, they will be on the court a long time and they have to know that 73-year-old Clarence Thomas and 71-year-old Samuel Alito can’t live forever. If Kavanaugh and Barrett find that there’s a potential for the balance of the court to shift in the next ten years, they might be persuaded to play a little nicer with Kagan, lest the court possibly swing drastically leftward when Thomas and Alito are no longer on the job.
This is all a long shot, I will say, but it’s more likely to work than whatever it is Roberts is doing now to convince his junior colleagues not to join Thomas and Alito in a mission to watch the world burn. Tactically speaking, the ballast of a fourth progressive justice will do a lot more to pull the court back from the brink of total illegitimacy than any admonishing minority opinions Roberts might join his three progressive colleagues in offering.
Finally, the one thing that Roberts appears truly concerned with other than the court’s legitimacy (and demolishing voting rights, which he’s already achieved), is his own legacy. How will history judge him if he retires early to restore the court’s balance and legitimacy? One thing is sure, he will go down in certain conservative circles as a Benedict Arnold–level villain. But he’s already achieved that status to a great extent and I don’t think Donald Trump could be any meaner to him than he already has been. Meanwhile, should he retire, Roberts will almost certainly go down in history as a noble hero who sacrificed his own position to save the legitimacy of the court and maybe even the “constitutional system.” Further, the gesture will likely be largely symbolic, as the five remaining conservative justices will continue to pull the court and the country further and further in the rightward direction that Roberts actually prefers, perhaps radically so.
What about Roberts’ legacy if he stays on the court? It doesn’t appear like that will go well. The court’s five conservatives are clearly intent on quickly pulling the country into a deep, dark well of minority rule and devastation of fundamental constitutional protections with or without him. If he sides with them, he has the potential to play a role in the destruction of our democratic experiment, up to and including any possible 2024 restoration of his loathed President Donald Trump via judicial rulings that might help overturn free and fair elections. If he bucks his conservative colleagues, he’s one of four losers warning about the imminent and ongoing collapse of a system that they are powerless to prevent. Either he will be the sixth vote on a radical, destructive Court that will forever tarnish the Supreme Court’s legitimacy and possibly devolve the nation into a series of constitutional crises from which we may never recover, or he’ll be a fourth loser howling into the ever-darkening void.
Retirement might not sound so bad if those are your options!