Slate’s Dahlia Lithwick and Mark Joseph Stern, two of he best legal analysts and Supreme Court observers, take a cold hard look at Chief Justice John Roberts’ newly revealed behavior in the big Trump cases last term and ruefully cop to being wrong about him. They discuss his seemingly centrist position in a number of important cases in which he found himself in the minority and his endless paeans to court legitimacy and conclude that he never really cared about the latter and just got tired of losing:
Two years ago, in his solo Dobbs concurrence, Roberts faulted both the majority and the dissent for their “relentless freedom from doubt.” We can only guess that some time thereafter, he decided doubt was, in fact, for suckers, and embraced the aggressive activism of his colleagues to the right. We get it: Losing is no fun, and in the early days of the 6–3 court, when Roberts tried to find a middle ground, he sometimes faced the sting of defeat, and rebukes from his own party. His solution, we surmise, was not to take a principled stand of dissent when the far-right bloc went too far, too fast, but to join them and lead them to new heights of extremism. If you can’t beat them, it surely can be more enjoyable to join them, especially when any fears of breaking the republic can be washed away with your colleagues’ sweet, soothing sycophancy.
The sycophancy they refer to are the private comments revealed from Gorsuch and Kavanaugh sounding like they’re speaking to Kim Jong Un — or Donald Trump.
Constitutional expert Steve Vladek also weighs in on this, having been suspicious for some time that Roberts’ alleged fealty to institutional legitimacy was BS:
Mine wasn’t the only piece over the summer that was sharply critical of Chief Justice Roberts—or that called into question how much he actually does worry about public perception of the Court in contexts in which he has some control over events. What the Kantor/Liptak piece drives home is that he does worry, but only to a very superficial degree. Thus, it was important to Roberts for the immunity case to be heard this term—even if he knew which way it was going to come out. It was important to Roberts for the Colorado case to be unanimous—until he couldn’t get the justices to his left to go as far as he wanted. It was important to Roberts to take Alito’s name off of Fischer—even though it wasn’t important enough to leverage him to recuse, or to so much as acknowledge, at any point in his majority opinion, the deeply fraught, conspiracy-laden narrative into which the Court was necessarily wading. Ultimately, it’s not high constitutional politics driving the bus; it’s optics. And as these episodes underscore, those just aren’t the same thing.
This court has now completely lost whatever legitimacy it once had, not that they care. And why should they? If there is a truly imperial institution in our system it’s the Supreme Court. We’ve already seen that impeachment is a paper tiger, only possible if one party has a super majority in the Senate so that’s off the table. The chances of court reform are next to nil as long as the GOP is batshit crazy and I see little chance of that changing any time soon.
Roberts clearly realized that there would be no price to pay for going for it. So he did. And there is no reason to believe he won’t continue to.