Chief Justice Roberts has evolved over the years. There was a time when he could be viewed as an “institutionalist.” In 2017, I analogized Roberts to a bank–depositing and withdrawing capital to advance the conservative “long game.”
The institutional theory views the Court as something like a checkbook: the Court can take a big withdrawal once in a while, so long it makes regular deposits. Indeed, Roberts has adopted such a fiduciary approach to judging. Back in 2007, he viewed the Court’s three-decade-long pattern of divisive 5-4 decisions as “eroding, to some extent, the capital that [Chief Justice] Marshall built up.” Thus, decisions can fall on either side of the ledger: deposits or withdrawals. By depositing “capital” in the narrow decisions—such as WRTL v. FEC, NAMUDNO v. Holder, NFIB v. Sebelius, and King v. Burwell —the Court can withdraw that “capital” in the broad decisions like Citizens United v. FEC, Shelby County v. Holder, and cases yet to come.
But after Trump, Roberts’s “long game” was turned upside down, and post-Dobbs, the long game is long gone.
If he is no longer an “institutionalist,” what is he? In the Washington Post, Jennifer Rubin offers this description of Chief Justice Roberts.
If political opinion “tester” explains Roberts’s past compromises and the shift from Shelby to Milligan, he should be viewed not so much as an institutionalist (who would protect the jurisprudential integrity of the court and insist on abiding by the highest ethical standards) but as an unprincipled politician, trying to prevent his radical colleagues from sinking the court and the Republican Party when he suspects blowback to decisions from the court’s right-wing majority.
In that sense, Roberts has become the worst sort of results-oriented judge. Rather than legal consistency, respect for precedent or even a judicial philosophy, he’s become the quintessential weather vane. How much can the public tolerate? How far must he let his conservative colleagues drift before the court falls into political oblivion?
I don’t quite agree. Chief Justice Roberts sees himself as the Court’s savior–the only force that can protect the legacy of John Marshall. John Roberts, and no one else, knows what is best for the Republic. John Roberts, singlehandedly, can ward off incursions from the radical left Court “reformers” and the radical right (including his colleagues). Of course, this is all a figment of Roberts’s imagination. Delusions of grandeur, really. He can barely keep his own Court in line. Joan Biskupic’s reporting suggests that even his colleagues are annoyed at how much Roberts seems himself as in control.
I don’t think Roberts is a weather vane. I think he’s just, so, vain. He probably thinks the Court is about him.
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