Chief Justice John Roberts seems distraught. After Friday’s ruling by his five Conservative Supreme Court colleagues to allow Texas’s SB 8 bonus system for the time being, Roberts wrote that his colleagues had pushed the entire judicial review system to the brink of disaster.
“The clear purpose and real effect of SB 8 has been to overturn the decisions of this Court,” Roberts wrote in perhaps the most poignant moment of his career. To prohibit federal prosecutions against judges and clerks who could in practice enforce SB 8’s seemingly constitutional annulment scheme – which allows individuals to sue anyone who “encourages” a forgotten abortion without federal judicial review – threatened to to make “the constitution itself” a “solemn derision”.
“The nature of the federal law violated does not matter; it is the role of the Supreme Court in our constitutional system that is at stake, ”Roberts wrote in an opinion joined by the court’s three progressives. Texas law effectively prohibits abortions in the state.
“Annul… court decisions. “Solemn derision.” “Constitutional system… at stake”. It all sounds… pretty bad!
The Chief Justice is not exaggerating. By blessing even a modified version of the Texas Bounty-based program to Shake Roe vs. Wade, the court’s five ultra-conservatives are clearly opening the door to the state’s cancellation of other rights. This question itself was raised in oral argument, as well as part of an amicus brief from a gun rights group that feared liberal states would put constitutional rights cherished by conservatives, such as virtually unlimited Second Amendment rights, in the crosshairs.
Die-hard Trumpists might scoff at the warnings of the Chief Justice, whom they have long viewed as a renegade for his decision to cast a fifth vote in support of Obamacare and for other relatively moderate measures. If Democratic officials in the Blue States have the nerve to try and attack GOP-favored constitutional rights through a similar scheme, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett may simply reassess their positions. . After all, the constitutional right to abortion is probably on the verge of extinction based on their five votes when Dobbs Vs Jackson Women’s Health Organization is decided in about six months, so what Actually have these five judges blessed in the meantime? Certainly not the right for California to offer bonuses of $ 10,000 to anyone who encourages the sale of a handgun, which would threaten a real just unlike the sham abortion protection that’s about to go the bird’s-eye path? At the end of the day, the inconsistency only really hurts you when you don’t have the votes, and the Federalist Society now owns this tribunal with one, two, three, four, five of them.
I understand! The Right has stacked the court with diehard supporters raised in virtually criminal circumstances, and now they have certain expectations. There is no reason to let some harassers of this little black-robed dog change whatever they might do to reshuffle the entire constitutional system according to Samuel Alito’s worldview, printed on Fox News.
Roberts, however, is an independent actor. Judging by his previous swerves – albeit moderately – in the middle, the Chief Justice seems very concerned about the collapse of the court’s public legitimacy. And, again, if you read the words he wrote in his concurring opinion in SB 8, he also has real fears not only about how all that slash and burn will play out with the audience, but also as to what this means for our whole “constitutional system”.
If Roberts really means all of those desperate warnings in his Desperate Opinion on Friday, then he has an option that would go a long way to allaying many of the concerns he claims to have about the court’s legitimacy and the potential overturning of its rulings. , and the status of our very republican structure: Roberts could retire.
You might ask: Why would anyone retire from one of the most powerful jobs in the world at the age of 66 and with a lifetime tenure?
That’s a good point, and I’m not sure the Chief Justice will accept my humble proposition.
However, that would clearly solve a lot of the problems he claims to have with our entire constitutional system now being ‘at stake’.
First, it’s not historically given that just because judges have a life term doesn’t mean they stay in office forever. Supreme Court justices often retire. In fact, in the not too recent past, it was not uncommon for them to retire during the tenure of a chairman of the party opposite to whoever appointed them, which would be the case if Roberts, appointed by the Republicans, was now retiring with Democrat Joe Biden in the White House. (As Scott Lemieux wrote in the Washington Post in 2019, “For the most part, strategic resignations haven’t been a problem for much of the 20th century.[.]”) Heck, even popes do retire from time to time. Historically speaking, it wouldn’t be crazy, or even weird, for Roberts to retire from this job early.
Second, the retirement would clearly alleviate many of the questions the court faces about its legitimacy, which Roberts now says he is very concerned about. If Roberts retires now, for example, he is lending weight to the argument that his Democratic-appointed colleague Stephen Breyer used to resist calls for his own retirement that the tribunal is in fact not a hopelessly shattered and partisan institution and that judges strategically step down when a favorite president is in the White House is a what really undermines the legitimacy of the tribunal. If Roberts retires when a Democrat can replace him, that proves Breyer’s argument that the system still works! Further, Roberts’ departure would essentially amount to an offer to return the Supreme Court seat that was stolen by Mitch McConnell when the Senate refused to hold a hearing on Barack Obama candidate Merrick Garland for nearly a year. at the end of her presidency, then sat Amy Coney Barrett with weeks remaining in Donald Trump’s tenure.
To be clear: at this point, the biggest point of contention around the legitimacy of the court is this stolen seat. Suddenly, Roberts could deny this argument almost entirely. As such, his retirement would quell any lingering calls for court reform, which are weak at the moment but could grow stronger as the court wobbles further to the right.
Third, this is probably the best method Roberts has of nudging the tribunal in the direction it actually wants it to go, where it gradually but significantly shifts the constitutional law to the right, but without overturning the whole basket of apples. in just one time. . If Roberts is replaced by a progressive fourth jurist, Justices Kavanaugh and Coney Barrett might feel some pressure to pivot to find any a sort of common ground on major issues with tactically moderate progressives like Elena Kagan. After all, they’ll be on the pitch for a long time and they need to know that Clarence Thomas, 73, and Samuel Alito, 71, can’t live forever. If Kavanaugh and Barrett see that it’s possible for the pitch to change over the next ten years, they could be persuaded to play a little better with Kagan, lest the pitch shift drastically to the left when Thomas and Alito are no longer on the job.
This is all a long time, I’ll say, but it’s more likely to work than anything Roberts is doing now to convince his junior colleagues not to join Thomas and Alito on a mission to watch the world burn. From a tactical standpoint, the ballast of a progressive fourth justice will do much more to remove the tribunal from the brink of utter illegitimacy than any reprimanded dissent Roberts could offer his three progressive colleagues.
Finally, the only thing that seems to really care about Roberts, other than the legitimacy of the court (and the demolition of voting rights, which he has already achieved), is his own legacy. How will history judge him if he takes early retirement to restore the balance and legitimacy of the Court? One thing is for sure, he will fall in some conservative circles as the Benedict Arnold level villain. But he has already achieved that status to a large extent and I don’t think Donald Trump can be any meaner to him than he already has been. Meanwhile, if he retires, Roberts will almost certainly make history as a noble hero who sacrificed his own position to save the legitimacy of the court and perhaps even the “constitutional system.” Plus, the move will likely be largely symbolic, as the five remaining Tory judges will continue to pull the court and the country further and further to the right that Roberts actually prefers, perhaps radically.
What about Roberts’ legacy if he stays on the pitch? It doesn’t look like it will go well. The court’s five conservatives clearly intend to quickly pull the country into a deep and dark pit of minority domination and devastation of fundamental constitutional protections with or without him. If he sides with them, he has the potential to play a role in destroying our democratic experience, up to and including any possible restoration in 2024 of its hated President Donald Trump via court rulings that could help cancel free and fair elections. If he is defending himself against his fellow Conservatives, he is one of four losers to warn of the impending and ongoing collapse of a system they are powerless to prevent. Either he will be the sixth vote on a radical and destructive court that will forever tarnish the legitimacy of the Supreme Court and possibly drag the nation into a series of constitutional crises from which we may never recover, or he will be a fourth. loser screaming in the increasingly dark void.
Retirement might not seem so bad if these are your options!