WASHINGTON — Chief Justice John Roberts has sat in the center seat on the Supreme Court bench since his arrival in 2005. But only this term did he assume true leadership of the court.
He made clear his influence in a pair of stunning decisions Thursday, joining the court’s liberal wing in one and his fellow conservatives in the other. In providing the decisive votes and writing the majority opinions in cases on the census and partisan gerrymandering, he demonstrated that he has unquestionably become the court’s ideological fulcrum after the departure last year of Justice Anthony Kennedy.
The key parts of both decisions were decided by five-justice majorities, and the chief justice was the only member of the court in both.
The two rulings, one a rebuke to the Trump administration and the other a boon to Republicans, was consistent with Roberts’ insistence that politics should play no role in judging. “We don’t work as Democrats or Republicans,” he said in 2016.
Conservatives expressed bitter frustration Thursday about what they saw as the chief justice’s unreliability, if not betrayal.
“Chief Justice John Roberts disappointed conservatives today — to a degree not seen since he saved ‘Obamacare’ in 2012 — when he sided with the court’s four liberals to second-guess the Trump administration’s reasons for adding a citizenship question to the census,” Curt Levey, the president of the Committee for Justice, a conservative activist group, said in a statement. “The census decision will surely deepen the impression that Roberts is the new Justice Kennedy, rather than the reliable fifth conservative vote that liberals feared and conservatives hoped for.”
The dissenting members of the court in both of Thursday’s cases all had the same criticism — that the chief justice’s analysis was warped by politics.
In the census decision, Roberts basically accused Wilbur Ross, the secretary of commerce, of lying about why he wanted to add the citizenship question. “The sole stated reason” for adding the question, the chief justice wrote, “seems to have been contrived.”
The chief justice stuck with his usual allies in Thursday’s second blockbuster, which said judges cannot hear claims of partisan gerrymandering, the practice of drawing election districts to help candidates of the political party in power.
It was the more consequential of the two decisions and, as a practical matter in the current electoral landscape, it will mostly help Republicans.
The chief justice is often said to have conflicting impulses. He is a product of the conservative legal movement, and his voting record reflects that. On issues of racial discrimination, religion and campaign finance, his views are in the mainstream of conservative legal thinking.
But the chief justice also considers himself the custodian of the Supreme Court’s prestige, authority and legitimacy.
That puts the chief justice in an impossible situation. A recent essay in the Harvard Law Review by Tara Leigh Grove, a law professor at William & Mary, called it a “legitimacy dilemma.”
If the chief justice always votes with the court’s four other Republican appointees to advance a conservative agenda, he may appear political, raising questions about the court’s legitimacy. But if he takes account of that public perception in deciding how to vote, he may appear to be caving to pressure that is itself illegitimate.