If liberal dreams — so endearing, so enduring — really did come true, Chief Justice John Roberts would resign. He’s been at it for 17 years. And he’s been incapable of tempering the Federalist Society-stamped fanatics on the right or leading the court toward any semblance of justice for all.
The Times’s Supreme Court correspondent Adam Liptak marked June 24 as “the day Chief Justice John Roberts lost his court,” writing that the five hard-right justices “humiliated the nominal leader of the court and rejected major elements of his jurisprudence.”
In retiring at age 67, Roberts could make a statement about the perils of a gerontocracy and the possibility of Supreme Court term limits, even if only self-imposed. He could help forestall constitutional changes to the court that might be welcome by those on the left while they remain in power and abused by the right when they are not. In retiring, he could help restore public confidence in the court and ensure its future.
It won’t happen.
But it’s hard not to hope. After all, liberals have a long, idealistic history of hoping Roberts would be better than our worst fears. We hoped he might prove a wild card, another David Souter. We hoped he might evolve, another Harry Blackmun. We even hoped he might become a crucial swing vote, another Anthony Kennedy. (In fact, he has swung infrequently and rarely on pivotal cases.) And we hoped he might be a force of persuasion with his fellow Republican appointees. (For seven months, he tried to move the deciding justices on Dobbs v. Jackson Women’s Health Organization; nobody budged.)
Liberal hopes for Roberts date back to his nomination. He seems like he could be a decent guy, we said at the time. So earnest. He smiled. There was none of the preening smugness of Antonin Scalia. This was no glaring Clarence Thomas, who famously said to his clerks, “I ain’t evolving.”
Even reliably liberal senators were fooled. “Judge Roberts’s impeccable legal credentials, his reputation and record as a fair-minded person and his commitment to modesty and respect for precedent have persuaded me that he will not bring an ideological agenda to the position of chief justice of the United States and that he should be confirmed,” said Russ Feingold, Wisconsin’s liberal Democratic senator, at the time.
“I can only take him at his word that he does not have an ideological agenda,” Senator Patrick Leahy, then the ranking Democrat on the Senate Judiciary Committee, said. “I don’t think he’ll vote to overturn Roe v. Wade,” asserted one of Colorado’s then senators Ken Salazar, after two cordial visits with the nominee. (Not everyone was fooled; two veterans, Senator Ted Kennedy and Representative John Lewis, idealists and pragmatists both, knew better.)
Even after liberals were proved wrong with egregious decisions like Citizens United, which sold the country off to the highest bidders, we didn’t stop hoping. In the wake of Donald Trump’s extremist nominees, Roberts seemed relatively … benign. Surely, he had grown on the court; surely, he would continue to grow. He’ll be a moderating force, we said when he voted to maintain the independence of the census against the Trump administration’s attempted citizenship question, voted with the majority on DACA and upheld the Affordable Care Act.
After the leaked draft of the Dobbs decision, liberals again grabbed at hope that Roberts might sway the ultraconservative bloc. That he might somehow bring his fellow jurists around to something more reasonable, if not out of a concern for women’s rights and autonomy, then at the very least out of a respect for precedent. Yet he stood alone in his concurring opinion that the court should have stopped short of “the dramatic step of altogether eliminating the abortion right first recognized in Roe.”
And now here we are, all hopes deflated, decades of precedents tossed aside in one term, along with our cherished civil liberties.
I’m not the first to suggest that Roberts show himself the door. A Politico columnist, John F. Harris, floated the idea in February, quoting Roberts from his confirmation hearings: “Umpires don’t make the rules, they apply them … They make sure everybody plays by the rules, but it is a limited role.” Earlier in his career, Roberts famously said that he believed in “the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more.” Clearly, the insurgents on the court don’t play by the same rules as the incrementalist Roberts or care a whit for his inclination toward restraint.
Consider what happens if he stays. He’s already sullied his reputation on the right, having been bludgeoned by his critics, notably Trump, for years. He’s utterly failed liberals and moderates. His legacy would be one of ongoing ineffectiveness for all parties.
Retirement would make Roberts a hero for many. He could stand up for his principles, as articulated in his opening statement during his confirmation process. (“If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court.”) He could enable President Biden to appoint a new chief justice, someone who could restore a smidgen of balance to an institution ideologically out of whack.
In retiring, Roberts could help the court move toward positions that more broadly reflect the opinions of most Americans, rather than those of an extremist faction.
He could bolster confidence in the court. In 2021, public opinion of the Supreme Court reached a new low, with only 40 percent of Americans voicing approval in a Gallup poll. Given this term’s decisions on guns, climate change and abortion, one can expect that rating to plummet even more.
Meanwhile, the stench of illegitimacy emanating from the court only grows stronger, the need for change more urgent. Some have proposed adding justices. Others suggest mandatory term limits or severely limiting the court’s shadow docket.
Such proposals are tempting. But while liberals may cling to a hope in the better angels of our nature, conservatives are just as entrenched in their belief in our worst. Even if Democrats succeeded in reforming the court, Republicans would impose their own “reforms” as soon as they got the chance, choosing power over principle.
Given a choice between a destabilized future and the degraded status quo, the prospect of one man doing the right thing feels like a more plausible option. Oh, yes, there it is again, that liberal hope — naïve, optimistic, fooled three times — that Roberts will have the decency we’d like to think he has. That Roberts will act on principle for the sake of his country. That Roberts will resign.
