New York Times former Supreme Court reporter Linda Greenhouse held a dubious celebration of Chief Justice John Roberts Jr., who begins his 10th Supreme Court term on Monday, in a column at nytimes.com. She foresaw a possible, pleasingly liberal tilt in the court to come, while attacking the Court’s "steady regression on race and its deregulatory hijacking of the First Amendment" and Justice Clarence Thomas's "full-steam-back-to-the-18th-century" approach to constitutional interpretation.
It has been an eventful nine terms for the court and its chief. Samuel A. Alito Jr., Justice O’Connor’s eventual replacement, is well to her right and has provided Chief Justice Roberts with a reliable if narrow majority for the court’s steady regression on race and its deregulatory hijacking of the First Amendment. Along with ever-expanding accommodation of religious interests, these are the areas in which the Roberts court has made its increasingly predictable mark.
After downplaying "the tedious debate over whether Justice Ruth Bader Ginsburg should take a bullet for the left and hang up her robe," Greenhouse, who gave a notorious speech to her alma mater in 2006 accusing the Bush administration of a "sustained assault on women's reproductive freedom and the hijacking of public policy by religious fundamentalism," sounded sanguine about Chief Justice Roberts letting the left-ward drift of national politics guide his decision-making.
What all this means is that while the Roberts court will keep its name, it will inevitably change its stripes -- but in which direction? Will Chief Justice Roberts preside over a robust conservative majority, or will he be a beleaguered dissenter, left to watch from the sidelines as others build a jurisprudential legacy and deprive him of the chance to build a lasting one of his own? These are not, of course, necessarily the only choices that may confront him. Assuming neither passivity nor helplessness in the face of political adversity, it’s also possible that he could change his stripes along with the court. That is to say that if the court’s center of gravity moves to the left, so too could the chief justice migrate toward the center of the new spectrum, thus staying in the game and retaining the ability to shape outcomes.
She praised Roberts' flexibility and caginess that enabled him to find Obama-care unconstitutional, in contrast to bossy Justice Scalia and barbaric Justice Thomas.
This is a less cynical thought than it might first appear. For one thing, almost any major Supreme Court case presents a range of options, narrow to broad, for reaching a desired result. For another, Chief Justice Roberts has already shown himself highly skilled at both approaches. In contrast to Justice Scalia’s “my way or the highway” and Justice Clarence Thomas’s full-steam-back-to-the-18th-century, Chief Justice Roberts is adept at modulating both his tone and his ambitions to fit the situation at hand. The court’s most recent term offers ample evidence.
In the summer of 2012, when Roberts dismayed Republicans by casting the deciding vote to uphold Obamacare via a highly questionable line of reasoning, Greenhouse said Roberts may have "evolved" to his position partially due to "the breathtaking radicalism of the other four conservative justices," and quoted Judge Richard Posner in suggesting Roberts may read the criticism and think to himself "What am I doing with this crowd of lunatics?"
Greenhouse returned to Roberts' imagined role reigning in the right, getting another crack at how Roberts has "evolved" (a phrase she well knows causes eye-rolls among conservatives when applied to Republican-appointed justices who "grow" by leaning left):
The question remains whether the chief justice’s position in these and in similar cases in previous terms was the result of choice or necessity. Was he following his own best instincts, or was he simply trying to hold a court in the face of the untamed activism on his right flank? I don’t presume to know -- any more than I have managed to unpack the enduring mystery of his vote two years ago to save the Affordable Care Act. Will Chief Justice Roberts “evolve,” as have other Republican-appointed justices in recent memory (think of Sandra Day O’Connor, John Paul Stevens, David H. Souter, Harry A. Blackmun)?
Chief Justice Rehnquist, in his final years on the bench, seemed to have moved a bit to the middle in a few notable cases, and I was once in his presence when someone asked him whether he was in fact in the process of moderating his rigorously conservative views. Raising an eyebrow, the chief justice looked at his questioner and replied deadpan: “Do you mean, have I shown a capacity for growth?”
One man’s growth is, perhaps, another’s survival. Happy anniversary.