Let’s make it clear at the outset. John Roberts is no liberal. Appointed by President George W. Bush, he is extremely conservative by historic standards. He ruled with the majority in the decision to strike down part of the Voting Rights Act, on the equally flawed Citizens United decision, and voted with the minority in the Windsor and Obergefell cases which made marriage equality the law of the land.
And yet Roberts appears to be mindful of the importance of maintaining the legitimacy of the Court, and has at times parted ways with the more conservative members of the Court. The most famous example was National Federation of Independent Business vs. Sebelius, the big Obamacare case, in which, at the last minute, Roberts changed his vote and allowed key parts of the law to take effect, while hindering the Medicaid expansion somewhat by allowing states to opt out. Nevertheless, the result was much better than if he had sided with conservatives, which would have completely gutted the law.
Roberts, by longstanding tradition, is the man to whom the joyful task of swearing in Donald Trump as president will fall. But perhaps this new bromance is not getting off on the right foot.
Here’s what Trump had to say about Roberts shortly after the Obamacare decision:
“He looked like a dummy, because frankly his decision does not seem to be written by the supposedly smart man… the decision makes no sense to anybody that reads it.”
And last December, he had this to say:
“ObamaCare is going down with or without Justice Roberts, if you know what I mean,” he explained. “I will tell you this: Justice Roberts really let us down. He really let us down.”
Then in January, Trump remarked:
"Justice Roberts turned out to be an absolute disaster, he turned out to be an absolute disaster because he gave us Obamacare."
and also said: that Roberts had:
"turned out to be a nightmare for conservatives,"
Let’s look at this from John Roberts’ perspective. He has just come from a situation in which he was looking at the very big possibility of his Conservative majority disappearing for decades. Now the Republicans will get to keep the majority, but Roberts may realize that the way they got it was unfair. Roberts is at least somewhat mindful of the value of judicial restraint, and also of the Court’s historic role in protecting justice in our society.
Depending on how objective he is, he may also realize that subsequent events have shown that his premises were flawed in some big cases he was involved in, like the Voting Rights Act case, where he said that voting rights protections were no longer necessary because racism had been largely eliminated: “Our country has changed.”
In any event, Roberts at a minimum is likely to realize that with Republicans in complete control of the federal government it is vitally important that the Supreme Court act independently to protect the system of checks and balances. Roberts need merely read Trump’s insulting comments about him to see how imbalanced and in need of checks he is. In a court that will be split 5-4 conservative-liberal after a presumptive right-wing appointment from Trump, Roberts will wield the balance of power in most decisions.
During the nearly 10 months since Antonin Scalia’s death, Roberts has been working tirelessly to find common ground to reach majority support on an equally divided 4-4 court. Havinng worked hard find common agreement with ideologically diverse justices, Roberts may find that this consensus strategy will continue to serve and bring respect to the court even when its composition shifts back to the right.
Also, a personal theory that I have always had is that it is likely that John Roberts and Barack Obama, despite differing political backgrounds, have some respect for each other, maybe even chemistry (see the picture above). Both are graduates of Harvard Law School. Obama was the first black editor of the Harvard Law Review and later a Constitutional Law Professor. And Roberts also edited the Harvard Law Review is of course the Chief Justice.
And with Trump, Roberts is going to have a much different kind of relationship. With Trump certain to make one and likely to make two or even three appointments to the Supreme Court, John Roberts might often be the last line of defense for our system of government in the Trump era.
