John Roberts’s Early Supreme Court Agenda: A Study in Disappointment

WASHINGTON — After finishing his first term on the Supreme Court in 2006, Chief Justice John G. Roberts Jr. was feeling pretty good. The court had issued its longest run of unanimous decisions in modern history, and he was ready to sketch out an ambitious and optimistic plan for the balance of his tenure.

His goal, he told Jeffrey Rosen, a journalist and law professor, was to protect the legitimacy of the court through consensus, narrow opinions and a vision of the judicial role that had no place for partisan politics.

The interview is worth revisiting, as it remains the clearest statement of Chief Justice Roberts’s early aspirations. Over the years, he has had only fitful success in achieving them. More recently, after a term that featured sharply divided decisions on abortion, guns, climate and religion, his project is in shambles.

Chief Justice Roberts, 67, has served for 17 years, which is already a few years longer than the average tenure of his 16 predecessors. It is entirely possible that he will stay in his position long enough to rival his idol, Chief Justice John Marshall, who served for more than 34 years and transformed the institution’s power and prestige.

But it seems distinctly unlikely that Chief Justice Roberts will be able to prod his colleagues toward the clarity of purpose of the Marshall court, which was noted for speaking with a single voice. In 2006, though, he said he aimed to try.

“I think that every justice should be worried about the court acting as a court and functioning as a court,” he said, “and they should all be worried, when they’re writing separately, about the effect on the court as an institution.”

He added that the court should “refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.”

Understand the Supreme Court’s New Term

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A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:

Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.

Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.

Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.

Election laws. The court will hear arguments in a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions. In a rare plea, state chief justices urged the court to reject that approach.

Discrimination against gay couples. The justices will hear an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.

The consensus the chief justice sought has proved elusive. In the term that ended in June, there was at least one dissent in 72 percent of the court’s signed decisions in argued cases, the highest rate in four decades, according to data compiledby Lee Epstein of the University of Southern California, Andrew D. Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan.

Chief Justice Roberts’s 2006 statement about “the court acting as a court” bore a striking resemblance to language used by Justice Elena Kagan in public appearances this summer and fall in which she suggested that the court’s recent decisions had undermined its legitimacy. In September, for instance, she said that “the thing that builds up reservoirs of public confidence is the court acting like a court.”

Justice Elena Kagan at a panel discussion in Chicago in September.Credit…Ashlee Rezin/Chicago Sun-Times, via Associated Press

In October, she said the court was at a crossroads. “Do we engage with each other in a way that attempts to find common ground, in a way that fosters principled compromise?” she asked. “Or is that sort of beyond us?”

The two justices were making different but related points. Chief Justice Roberts said that unanimous decisions inspired public confidence, while Justice Kagan expressed larger worries, including that overruling precedents soon after changes in the court’s membership threatened its legitimacy.

But Chief Justice Roberts did address the importance of insulating the court from partisanship in the 2006 interview.

“Politics are closely divided,” he said. “The same with the Congress. There ought to be some sense of some stability, if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.”

Back in 2006, Chief Justice Roberts said that his colleagues spoke openly about protecting the legitimacy of the court as new members joined. They “don’t want the court to seem to be lurching around because of changes in personnel,” he said of his colleagues.

The court’s decision in June to eliminate the constitutional right to abortion established in 1973 in Roe v. Wade left it open to just such criticism, particularly as Donald J. Trump had vowed during his 2016 presidential campaign to name justices who would overrule that decision. All three of his appointees were in the majority.

Chief Justice Roberts took a middle-ground position in the case, Dobbs v. Jackson Women’s Health Organization, as he had in an opinion concurring in a 2020 decision striking down a restrictive Louisiana abortion law.

In the 2006 interview, the chief justice reflected on the distinctive responsibilities of his job, noting that his predecessor, Chief Justice William H. Rehnquist, had undergone a transformation when President Ronald Reagan elevated him after 14 years as an associate justice.

“I think there’s no doubt that he changed, as associate justice and chief,” Chief Justice Roberts said. “He became naturally more concerned about the function of the institution.”

Chief Justice Rehnquist seemed to switch positions, for instance, on Miranda v. Arizona, the 1966 decision that required police officers to read the familiar warnings before interrogating people in custody. He had been critical of the decision but in 2000 wrote a majority opinion upholding it.

Chief Justice William H. Rehnquist taking the oath of office at the White House in 1986.Credit…Charles Tasnadi/Associated Press

Chief Justice Roberts explained his predecessor’s thinking: “He appreciated that it had become part of the law — that it would do more harm to uproot it — and he wrote that opinion as chief for the good of the institution.”

Mr. Rosen, who conducted the interview and is now the president of the National Constitution Center, said that the goals expressed by Chief Justice Roberts early in his tenure were worthy ones.

“Chief Justice Roberts deserves huge credit for trying to preserve the nonpartisan legitimacy of the court by promoting narrow, unanimous decisions,” Mr. Rosen said last week. “He recognized from the beginning that the success of his vision would depend on his colleagues, and it’s not his fault that he lost the votes.”

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