the national interest

The Last Republican Politician

Can John Roberts stave off a Democratic assault on the Supreme Court?

Illustration: Jack Darrow; Photos: Chip Somodevilla/Getty Images
Illustration: Jack Darrow; Photos: Chip Somodevilla/Getty Images

The Republican Party has been in desperate need of a pragmatic leader who can gauge public opinion, shrewdly husband political capital, and advance the party’s agenda in sustainable ways. That leader has materialized in the form of John Roberts. The chief justice of the United States is attempting to navigate the disjuncture between voters, who on the whole are sharply divided but have slightly favored Democrats, and the power Republicans have accumulated through the Supreme Court, which is quasi-permanent and unbounded by any other political branch.

In theory, Republicans could use their hammerlock on the high court to settle a long series of social and economic disputes in their party’s favor. This is the course many conservatives hoped, and liberals feared, the conservative Court would take, especially after Donald Trump was able to seat three justices and pad its right-wing majority. Instead, Roberts has pursued a more cautious strategy, and the question is if this will be enough to shore up the Court’s falling popularity and disarm Democratic threats to overhaul it.

While he has given conservatives high-profile victories on long-standing social divisions like abortion rights and affirmative action, he has also given victories to liberals. In the term that ended in late June, the Roberts Court definitively repudiated the “independent state legislature” theory, which Trump’s supporters had pushed as his vehicle to attempt to overturn the 2020 election and with which other Republicans hoped to enable gerrymandered legislatures to entrench their power. Liberals, having fretted the case was a ticking time bomb for the Republic, exhaled in relief. Former federal judge J. Michael Luttig called the decision “the single most important constitutional case for American Democracy since the Nation’s Founding almost 250 years ago.” More surprisingly, the Court, which under Roberts in 2013 undid a crucial pillar of the Voting Rights Act of 1965, issued an expansive voting-rights ruling that will create more Black-majority legislative districts in southern states, which had previously been free to marginalize Black voters. Roberts and Brett Kavanaugh voted with the Court’s three liberals in these recent cases, joined by Amy Coney Barrett in the “independent state legislature” case.

If you were to ask Roberts to explain this pattern, he would no doubt insist he is merely interpreting the law as written. As a nominee in 2005, he famously likened his role to an umpire calling balls and strikes, a conceit he has clung to even as the Court’s reputation for above-the-fray independence has dwindled. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in 2018 after Trump lashed out at a federal judge over an immigration ruling.

But very few people actually believe him. A decade ago, Roberts reportedly reversed himself in deliberations about a lawsuit to overturn the Affordable Care Act, ultimately crafting a compromise that left in place parts of the law. Last year, reporting indicated he was lobbying Kavanaugh to pull back from a full-scale repeal of Roe v. Wade. The Wall Street Journal ran an extraordinary editorial hinting at the Court’s divisions and urging its conservatives to stand firm. (Shortly afterward, Politico obtained the preliminary draft of the court’s Roe repeal, a leak that conservatives employed as an argument for forging ahead.) The chief justice may not be taking polls and holding focus groups, but he is acting like a man who is well aware that the popular legitimacy of the institution he leads is in danger.

The historical shadow looming over Roberts’s calculations is the confrontation between Franklin Roosevelt and the Supreme Court some 90 years ago. Roosevelt had found his economic reforms repeatedly overturned by a right-wing Supreme Court. After winning a landslide election, Roosevelt sought to take control of the Court by adding seats and appointing new and more liberal justices, only for the Court’s majority to reverse itself in 1937 and cede economic policy to Congress and the president.

Liberals have long feared that once the new generation of conservatives had gained control of the Supreme Court, it would revert to something like its pre-’37 stance. Perhaps the new right-wing jurisprudence would be less overbearing on economic policy, and more aggressive on social policy, than the version of a century ago, but the overall contours of the scenario that kept progressive legal analysts up at night was an unshackled Supreme Court throwing around its weight without fear of backlash.

Why would Roberts hesitate to seize the full range of power at his disposal — to the extent that he appears to be going against his own predilections? One reason is that the Court’s Republican majority is a historical accident. Unlike the Court that bedeviled FDR, which was the product of decades of Republican dominance that preceded him, the Roberts Court did not earn its majority as the result of Republicans winning a bunch of presidential elections. Democrats have won five of the last eight presidential elections and seven of the last eight popular votes.

The GOP majority on the Court is a combination of better actuarial luck and more selfless partisan teamwork by Republican justices and some ruthlessness by Senator Mitch McConnell. An aging Thurgood Marshall did not stay on the Court long enough for a Democrat to succeed him; McConnell used his Senate majority to prevent Obama from installing Antonin Scalia’s replacement; Ruth Bader Ginsburg simply refused to step down despite her cancer diagnoses, even while Democrats held the presidency and the Senate; then Anthony Kennedy, despite being a swing justice, stepped down under Trump. Those four events created the current right-wing majority. It is perfectly legal, but it hardly derives from anything like a mandate to reshape American law.

The rules of the Constitution make this result legitimate, too. But the Constitution also allows Democrats to either pack the Court or to reform it fundamentally in ways that would eliminate its Republican majority. They held off using this power when they controlled Congress and the presidency during Biden’s first two years. But if the Court exerts its authority in an abusive or too nakedly partisan fashion, the next Democratic Party–controlled government might decide it has to act. In the aftermath of the affirmative-action decision, President Biden ruled out packing the Court, though he told reporters, “This is not a normal Court.” This is the exact equilibrium Roberts wants: bad for Democrats, but not existentially bad.

The legitimacy of the conservative Court has been the thematic crux of its burgeoning ethics scandals. The conservative movement has rallied around Clarence Thomas and Samuel Alito even as they accepted undisclosed patronage from billionaires, branding reporters uncovering these financial relationships as activists seeking to discredit its prized majority. Roberts took a more conciliatory line, conceding ethics was an “issue of concern inside the Court.” The respective styles of Roberts and the Court’s right wing on ethics mirror their contrasting approach to jurisprudence: He seeks to conserve power by modulating it, and the right-wing justices seek to perpetuate their power by flaunting it.

Roberts’s strategy appears to be giving Democrats enough trust in the fairness of the Court’s decisions, and hope that they can win some future cases, to keep them from flipping over the game board. By the same token, the threat of a Democratic Court-reforming response is a helpful one to keep the Republican judicial majority in check. It remains to be seen whether Roberts and his colleagues will take that bargain or continue a run of precedent smashing that causes Democrats to see the Republican Court as an existential threat.

The myth that judges make rulings completely abstracted from any earthly considerations is the foundation of judicial legitimacy. Roberts, ironically, recognizes that maintaining that legitimacy means acting like a politician while pretending he’s just calling balls and strikes.

The Last Republican Politician