ADDENDUM 12/11/18 — Several readers responded to this post by saying they thought it would be best if Chief Justice changed his votes, but didn’t speak publicly about his reason for doing so. It appears that he is doing just that — aided by, of all people, Brett Kavanaugh. See this NYT story. https://www.nytimes.com/2018/12/10/us/politics/planned-parenthood-supreme-court.html
In a recent post I called for Chief Justice John Roberts to act. I felt that the politicization of the Supreme Court was destroying its legitimacy in the eyes of most Americans and that the Chief Justice should take action to “save the Supremes.” https://guileisgood.com/2018/11/03/saving-the-supremes/
And, lo and behold, Roberts has taken action, publicly criticizing President Trump for referring to a federal judge as an “Obama” judge. Roberts insists all judges are just “judges.” The problem, of course, is that Roberts is only right in a civics class sense; the Supreme Court is now inhabited by “Republican” and “Democratic” justices.
It all started when the Republican party started vetting potential judicial appointees on how they would vote on issues dear to the hearts of Republican voters. Roberts himself would never have been appointed Chief Justice if he hadn’t received the Federalist Society seal of approval as a “Republican” justice. And, truth be told, he has seldom disappointed.
But now we need Roberts to give a clear signal that he recognizes that, if the Court starts handing down decisions on controversial issues with support only of “Republican” justices, the public’s perception of the Court as being above the push and shove of partisan politics will quickly evaporate– and with it any positive verdict on the “Roberts” Court.
That’s why I suggest that Roberts take a simple action that will change the judicial playing field. He should announce that in the coming Supreme Court term he will not support any decision of the Court that does not receive the support of at least six justices. Because there are only five “Republican” justices, this would require the support of at least one “Democratic” justice to change the constitutional status quo. All decisions would have at least some bi-partisan support.
One positive side effect would be that this would nurture more bi-partisan cooperation. This might include some movement towards the center. That, of course, is at first glance alarming to leftist ideologues like myself, but maybe we have to come to accept the fact that in a nation where almost half the voters chose Donald Trump we cannot expect that the ACLU will always win.
That does not mean the Court cannot still be an agent of change. Remember that almost all landmark Supreme Court decisions (like Brown v. Board of Education and Roe v. Wade) have had strong support from justices appointed by presidents of both parties. Good things can happen when justices are “just” judges and not political surrogates.
Would it be proper for Roberts to make such a commitment? Certainly the text of the Constitution does not condemn it. Art III, Section 1 only establishes “one Supreme Court”. It does not refer to the number of justices who will comprise the Court or how they should make their decisions.
Nor would the Roberts action be “political” in any nefarious sense. It is not designed to further the policy goals of one party or the other. Instead it would help the Court retain the legitimacy it needs to perform its constitutional role as a “check and balance” on the other branches of of government.
It also would put the politicians on notice that the Court will not stand by and allow its legitimacy to be destroyed for a goal no more worthy than providing political parties one more issue upon which to divide the nation.
The Republican party has made Roe v. Wade an integral part of its campaign strategy for years (despite the fact that its majority opinion was authored by a “Republican” justice); and now I read that Democrats feel that their vocal opposition to Brett Kavanaugh played a role in their recent success in congressional races.
The parties are not likely to save the Court. Maybe it’s time for the Court to save itself.