New York Times

 

, 2016

by Adam Liptak

WASHINGTON — In Chief Justice John G. Roberts Jr.’s 11 years on the Supreme Court, his unfolding legacy has been marked by a debate over whether his very occasional liberal votes in major cases were the acts of a statesman devoted to his institution, a traitor to his principles or the legal umpire he said he aspired to be at his confirmation hearings.

This election could settle that debate.

If Donald J. Trump becomes president and follows through on his vow to appoint a conservative to replace Justice Antonin Scalia, Chief Justice Roberts will continue to lead a court dominated by five conservative justices. But the absence of Justice Scalia, the court’s longest serving and in some ways most dominant member when he died in February, means Chief Justice Roberts could lead in a more assertive way.

Were a liberal to replace Justice Scalia — whether it was President Obama’s pick, Judge Merrick B. Garland, or someone named by Hillary Clinton should she win the presidency — a majority of the justices would be Democratic appointees for the first time in almost 50 years. That would open a new chapter at the court, and leave Chief Justice Roberts, a Republican appointee with a generally conservative voting record, in the minority in many closely divided cases. And it could force him to choose between becoming a marginal figure or concluding that a new era on his court requires a new kind of leadership — and a move to the left.

“It’s been a long time since there was a chief justice who was in dissent across a wide range of important issues,” said Pamela S. Karlan, a law professor at Stanford.

As a practical matter, a chief justice in perpetual dissent would give up a crucial tool: assignment power. When the chief justice is in the majority, he gets to choose who will write the majority opinion. Much can turn on that choice.

The alternative is to find ways to vote more often with the majority, and that could mean tilting toward a liberal outcome. Recent history provides an analogy.

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“We may have, de facto, the first female chief justice,” said Akhil Reed Amar, a law professor at Yale.

In an interview in July, Justice Ginsburg seemed eager to take on a larger role should Judge Garland or another Democratic appointee join the court. “It means that I’ll be among five more often than among four,” she said.

That notion cannot cheer Chief Justice Roberts, Professor Karlan said. “On a court with five liberals, the chief justice faces the prospect of assigning cases involving the Federal Energy Regulatory Commission and the Bankruptcy Act,” she said, “while Justice Ginsburg assigns the cases that make the front page of The Times.”

Professor Strauss said Chief Justice Roberts would not tolerate that sort of irrelevance. “I don’t think this chief justice will accept being in a permanent minority on the court,” he said.

With two notable exceptions, Chief Justice Roberts’s voting record in major cases has been generally conservative since he joined the court in 2005, succeeding his old boss.

He was in the five-justice conservative majorities that decided District of Columbia v. Heller, which established an individual right to own guns;Citizens United v. Federal Election Commission, which amplified the role of money in politics; and Shelby County v. Holder, which gutted the core of the Voting Rights Act.

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And he dissented when a narrowly divided court’s rulings meant liberal victories on gay rights, abortion rights and affirmative action.

Chief Justice Roberts has been the subject of withering criticism from the right for twice voting to sustain Mr. Obama’s health care law. But those votes were exceptions, especially for major cases.

In 5-to-4 cases, Chief Justice Roberts voted in a conservative direction 85 percent of the time, a rate higher than that of any other member of the court, according to a study last year in The Journal of Legal Studies and to related data.

The study was prepared by Professor Epstein; William M. Landes, a law professor and economist at the University of Chicago; and Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit in Chicago.

“He is a reliable conservative in the most closely contested cases but moderate when his vote cannot change the outcome,” the authors wrote. “This is consistent with a chief justice’s interest in being on the winning side in most cases; otherwise it looks as if he cannot control his court.”

That pattern would most likely continue were a President Trump to name the next Supreme Court justice. Mr. Trump has released a list of potential nominees, all reliable conservatives, and none of them would shift the essential balance of power on the court.

In any event, Chief Justice Roberts is unlikely to compromise on his core commitments, said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine.

“There are some areas where Roberts holds very conservative views, such as marriage equality, abortion and affirmative action, and he will be in dissent if Justice Scalia is replaced by a Democratic president,” Professor Chemerinsky said.

In other areas, he added, “I think Roberts will do all he can to steer the court into narrow rulings whenever possible.”

Much will depend on the docket. The run of blockbusters that marked the Roberts court’s first 11 terms is unlikely to be matched anytime soon.

“We shouldn’t assume that the cases of the next decade or two will precipitate the same ideological division as today’s cases,” Professor Strauss said.

He added that the court could soon face hard questions on national security and police conduct.

“Issues like that could scramble the lineups we’re accustomed to,” he said, “and that would make it easier for the chief justice to maintain a leadership role.”

More vacancies are likely, too: Justice Stephen G. Breyer is 78, Justice Anthony M. Kennedy is 80 and Justice Ginsburg is 83. That means the next president could not only shift, but also cement, the direction of the court for a generation. It also means that there is a fair prospect that Justice Sonia Sotomayor, 62, will soon be the senior member of a five-member liberal bloc.

Chief Justice Roberts is just 61, and he is likely to preside over many iterations of the Roberts court. If a Democratic president chooses not only Justice Scalia’s successor but also several others, he may face dispiriting choices.

“He’s a young man,” Professor Amar said about the chief justice, “so for the foreseeable future it might very well be that his vision will be in eclipse rather than ascent.”