Lara Bazelon discusses in Slate the possible future behaviors of Chief Justice John Roberts of SCOTUS with regard to Roe v. Wade (abortion) and Obergefell (gay marriage), and pins her hopes on two points – stare decisis and his sense of legacy:
And yet. Roberts is not simply one justice out of nine; he is the leader of a court that will bear his name throughout his tenure. As chief justice, he has a unique responsibility to safeguard the integrity of the third branch of government. If the Supreme Court devolves into an ideological mouthpiece, as overtly political as Congress and the White House, Robert’s decade-long advocacy for judicial restraint and respect for precedent will be read as cant. Roberts himself will be seen as a hypocrite who put his personal preferences above the rule of law. History will view him as a failure.
And John Roberts does not intend to fail. He is keenly aware of his institutional role and he cares deeply about legacy—the court’s and his own. In 2007, when Jeffrey Rosen of the Atlantic asked Roberts to comment on the men who occupied this most rarified of roles before him, he replied, “It’s sobering to think of the seventeen chief justices; certainly a solid majority have been failures.” He went on to explain that these predecessors failed because they were overtly ideological; their members fractious, their opinions splintered and doctrinally unsound. He told Rosen, “I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.”
I think this is a fair point. The SCOTUS has a certain reputation for impartiality that was left in tatters by Bush v. Gore, as Lara points out, and I think he may consider it a mission to restore the reputation of a court that has begun to feel like a microcosm of our societal struggles; after all, how many 5-4 decisions really make sense? Is the law that vague? Or so unjust? Letting it become a sock puppet blowing in the wind certainly runs the risk of it losing yet more prestige. On her second point:
During Roberts’ confirmation hearing before the Senate Judiciary Committee in 2005, he famously stated, “My job is to call balls and strikes and not to pitch or bat.” The role, Roberts said, was important but also limited by stare decisis—a Latin phrase meaning “to stand by things decided.” He explained, “Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges.”
As Roberts later told Rosen, if he began every conference with his colleagues with an “agenda” about how to decide a case, they would dismiss him, and rightly so. Instead, he said, he had worked hard to earn the trust of the other members of the court by not being an ideologue.
Overturning years of precedent without an inarguable reason seems unlikely – but could happen. But hopefully not. It would be very good to see the inevitable test case get slapped down very hard.
