John Roberts

Calling Balls and Strikes in the Supreme Court

Supreme Court Chief Justice John Roberts is unequivocally conservative, but as only the 17th chief justice in US history and after 16 years as chief justice, Roberts is in a position to tip the high court in either direction on highly partisan cases such as extreme gerrymandering, the citizenship question on the Census and, once more, on the constitutionality of Obamacare. (Photo Credit: Doug Mills/The New York Times)

Supreme Court Chief Justice John Roberts is unequivocally conservative, but as only the 17th chief justice in US history and after 16 years as chief justice, Roberts is in a position to tip the high court in either direction on highly partisan cases such as extreme gerrymandering, the citizenship question on the Census and, once more, on the constitutionality of Obamacare. (Photo Credit: Doug Mills/The New York Times)

Congress may be deadlocked, but the conservative slant of the US Supreme Court is undeniable with a distinctly conservative chief justice and four ready followers.

Yet, Chief Justice John Roberts, only the 17th chief justice in the history of the country, remains an enigmatic, even secretive figure who broke the hearts of conservatives in 2016 by confirming Obamacare was constitutional. Now, the court he oversees will be faced with deciding seminally partisan cases involving political gerrymandering that could test his ideological leanings. Oral arguments in the cases were made on Tuesday.

The cases involve extreme gerrymandering by Republicans in North Carolina and Democrats in Maryland that good-government advocates are opposing, with electoral results in the pivotal 2020 election in the balance. Both cases, experts say, will test Roberts to see if he is more ideologue than institutionalist. 

Without a lot of fanfare, Roberts has served as chief justice for 16 years. At just 64, he could serve for in his role for another 20 years.

Coincidentally, a biography of Roberts has just been published that confirms advocates from both the political left and right are wary of him, despite his privileged upbringing and a clearly conservative record on voting rights, affirmative action, campaign contributions, abortion rights and same-sex marriage. 

Joan Biskupic, in her biography The Chief: The Life and Turbulent Times of Chief Justice John Roberts, describes him as the son of a steel company executive and product of an upper-class, all-white suburban Catholic prep school education. Roberts then went to Harvard for his undergraduate and law school degrees.

As an attorney, Roberts argued 39 cases before the Supreme Court before his nomination by President George W. Bush to succeed retiring Justice Sandra Day O’Connor. When Chief Justice William Rehnquist died before his confirmation, Bush upgraded Roberts’ nomination to chief justice. In his confirmation hearing, Roberts compared the role of judges to baseball umpires who calls balls and strikes. 

Now, the chief justice, who also doubles as the adult-in-the-room swing vote on the court, must decide on a pair of mirror cases that reflect unvarnished political gerrymandering. He also will deal with a case involving the citizenship question on the 2020 US Census, which also pits GOP ideology against a clear violation of the federal Administrative Procedure Act.

Biskupic thinks these cases could expose a side of Roberts often overlooked – his eagerness to avoid civil division. Citing Roberts’ vote in the Obamacare ruling, she says: “Viewed only through a judicial lens, [Roberts’] moves were not consistent, and his legal arguments were not entirely coherent. But he brought people and their different interests together. His moves may have been good for the country at a time of division and a real crisis in health care, even as they engendered, in the years since, anger, confusion and distrust.”

Roberts has shown a willingness to cross swords with his conservative soul mates, such as when he admonished President Trump for trashing a federal court judge. However, conservatives will expect Roberts to stay at his ideological home on seminal cases involving raw politics. The question is whether Roberts will stick to his ideological roots or, in cases involving partisan issues, perform like his proverbial umpire calling balls and strikes.

 

A ‘Fringe Idea’ to Apply Term Limits to the Supreme Court

A ‘new’ debate is emerging on reforming the Supreme Court, including imposing term limits on justices. What has been a fringe issue may be moving into the mainstream and even the 2020 presidential race. Debating the size and composition of the Court could be a refreshing dip into a rich part of American history that has occurred when the nation was founded, grappled with nationhood, recovered from civil war and addressed the ravages of the Great Depression.

A ‘new’ debate is emerging on reforming the Supreme Court, including imposing term limits on justices. What has been a fringe issue may be moving into the mainstream and even the 2020 presidential race. Debating the size and composition of the Court could be a refreshing dip into a rich part of American history that has occurred when the nation was founded, grappled with nationhood, recovered from civil war and addressed the ravages of the Great Depression.

While the Capitol is buzzing with news about averting a government shutdown, criminal justice reform and a resolution to exit the Yemeni civil war, a new debate is quietly entering the stage that could radically change the US Supreme Court.

With two new conservative justices appointed by President Trump sitting on the high court, liberals are talking about ideas to apply term limits to justices, restrict when presidents can appoint new justices and add more justices to the court. Fivethirtyeight calls the conversation a “fringe idea” that is gaining mainstream attention.

As Fivethirtyeight recalls, court-packing isn’t new or novel. The Supreme Court’s size was shrunk by outgoing Federalists from six to five to prevent incoming President Thomas Jefferson from making an early appointment. Republicans quickly returned the Court to its original size and later added a seventh justice so another Republican could be named.

The Court was increased to nine justices to give President Andrew Jackson two additional seats to fill as part of his battle to end the national bank. Following President Lincoln’s assassination, a Republican Congress reduced the Court to seven to deny his successor, Democrat Andrew Johnson, any nominations that could interfere with their reconstruction plans. Franklin Roosevelt tried court-packing to remove judicial obstacles to his New Deal, but his transparent objective sank his attempt.   

The impetus for the latest spasm of interest in Supreme Court “reform” was the decision by Senate Majority Leader Mitch McConnell to deny a hearing or confirmation vote for President Obama nominee Merrick Garland in 2016. The spectacle surrounding Brett Kavanaugh’s confirmation hearings earlier this year didn’t squelch interest in reforms.

“The whole idea was born out of bleakness,” says David Faris who wrote “It’s Time to Fight Dirty,” which Fivethirtyeight describes as a “highbrow manual” to achieve institutional change. His book includes a chapter on changing the trajectory of the Supreme Court, with ideas Faris credits to Fix the Court, a group that says it is dedicated “to open up the most powerful, least accountable part of government.”

One of the group’s main ideas is to end lifetime appointments for Supreme Court justices and impose 18-year term limits. It says that idea was originally suggested by none other than current Chief Justice John Roberts, who has served on the court since 2005.

“To paraphrase a John Roberts' 1983 memo, term limits would restore an important check on the most powerful, least accountable branch of American government, would increase the rotation of justices serving and would broaden the pool of potential nominees – all positive outcomes no matter where you stand politically.” He wrote the memo while working as associate counsel to White House counsel Fred Fielding during the Reagan administration.

According to Fivethirtyeight, the only elected official to express vocal support for Supreme Court justice term limits is freshman California Congressman Ro Khanna, who took his law degree from Yale University, has taught law and co-authored an amicus brief to the Supreme Court to allow race discrimination suits under the Fair Housing Act. Khanna, who worked in the Obama administration, doubts his former boss would favor the idea, but he thinks American voters might. “Americans love term limits,” he says.

For the idea to have any political legs, Khanna explains, it must be bipartisan. He and others who are intrigued by the idea of court reforms expect the issue to rise up in the 2020 presidential election as part of a broader debate over rehabilitating American democracy.

“Every presidential candidate should talk about their relationship to the Supreme Court, what they would do to reform the court, if anything, how they would go about selecting justices, and what they would do if there was a constitutional crisis,” Khanna told Fivethirtyeight. Polling has shown that candidate Donald Trump’s promises to appoint conservative justices was a factor in securing critical support, including from evangelical religious groups.

One of the other ideas being tossed around is limiting Supreme Court nominations to the first and third year of a presidential term, an idea ironically spawned by McConnell’s defense of ignoring Garland’s nomination in Obama’s final year in office. It also has been suggested to increase the size of the Supreme Court from nine to 11 or 13 justices – “depending on how many justices Trump winds up appointing.”

Term limits can cut both ways. Political conservatives might be thrilled to see Justice Ruth Bader Ginsburg, who joined the Court in 1993 and the subject of a new film, gone. Political liberals would feel likewise about Justice Clarence Thomas, who took his seat in 1991 following a contentious confirmation hearing that featured Anita Hill and charges of sexual harassment.

A current-day debate over the Supreme Court would be like a refreshing dip into American history. The reforms would be newly expressed, but bound to the nation’s ever-evolving democracy over issues such as judicial review, racial discrimination and gender equality.