In the case of Roberts, it has become apparent that he sees his job not strictly as “calling balls and strikes” as he said in his confirmation hearing when joining the court. The New York Times reports, “An incrementalist and an institutionalist, the chief justice generally nudges the court to the right in small steps, with one eye on its prestige and legitimacy.” This perspective prompted him to respond to President Trump’s attack on what he called an “Obama judge”: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts declared. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Roberts acted as an institutionalist in restraining the court from obliterating the Affordable Care Act. In his mind, it simply is not the court’s role to carry out the political revolution of one political party; withdrawing health care from tens of millions of people would make the court a political target, enlisting the court to do the work Republicans failed to accomplish legislatively. It was a straight line from that case to the decision to uphold the Deferred Action for Childhood Arrivals program on procedural grounds. The court again would not take the initiative to expel hundreds of thousands of “dreamers”; if Republicans wanted to achieve a result with such massive social and political implications, they would have to do it themselves.
In the case of abortion, Roberts is not willing to overturn 45 years of precedent on a partisan basis, a reversal that would have, again, affected millions upon millions of women. He may still find the constitutional underpinnings of abortion rights suspect, but he puts a priority on precedent and the perception that a simple change in president (and a nomination or two) should not result in wholesale reordering of constitutional rights. He may not have changed his views on previous Supreme Court abortion rulings in Roe and Casey, but he has placed added priority on precedent.
Several points deserve emphasis. Roberts’s role may be constitutionally wise at this juncture in our history, but it comes with a price.
First, there is a legitimate concern that restraint and reluctance to overturn precedent become a results-oriented exercise. The analysis is geared to reach the desired aim of preventing the court from being an instrument of revolutionary change. The result may be logically and legally inconsistent case law that creates a muddle for practitioners, lower courts and the public.
Second, there are times — as with Brown v. Board of Education — when the demands of constitutional justice require the court to act boldly. How does this jibe with the restraint Roberts wants to maintain so as to lower the court’s political profile?
Third, it is unclear whether this extreme concern for the court’s legitimacy, manifested in his effort to reduce the court’s political profile, is a temporary measure to account for a lawless president and the elevation of partisan warriors such as Justice Brett M. Kavanaugh (who essentially declared open warfare on Democrats whom he accused of conspiring against him in the confirmation process) or a permanent reduction in the court’s role.
Finally, the constant controversy over the court and the conflicting demands of the court’s legitimacy — as an apolitical body, on one hand, and considering its opinions’ jurisprudential rectitude on the other — suggest it’s time to seriously consider a limited term of, say, 18 years for Supreme Court justices, after which they can serve out the remainder of their lifetime appointments on a lower court. At this point, dissatisfaction over the court might be sufficiently bipartisan to convince lawmakers on both sides that the hand-to-hand combat and politicization of the court that stem from concern over a justice’s lifetime tenure should end. If this does end, perhaps the court can return to calling balls and strikes rather than defending the status quo.
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