After President Donald Trump successfully nominated two Supreme Court Justices — Neil Gorsuch and Brett Kavanaugh — it appeared as though the high court had swung decisively to the right with a 5-4 conservative to liberal ratio.
However, after the 2018 retirement of swing Justice Anthony Kennedy, Chief Justice John Roberts appears to be becoming the new swing vote, as he increasingly leaves his conservative colleagues to side with the court’s liberals.
Siding with liberals
In fact, just this past week Roberts sided with the liberals on two separate cases, one of which involved ordering a lower court to rehear a death penalty inmate’s claim of mental incompetence prior to execution.
It’s one of several cases over the past year or two where Roberts has provided the deciding vote for a liberal outcome, such as ruling against an asylum rule change by the Trump administration or blocking Louisiana from implementing tighter restrictions on abortions.
A definite trend
Some court watchers have begun to see a trend emerging in Roberts’ votes that suggest a subtle change, though it is too soon to tell if Roberts has truly moved toward the left ideologically.
Bloomberg noted that ever since Roberts was first appointed to the court in 2005 by then-President George W. Bush, Roberts had only sided with the liberal justices on five occasions until 2017, the most notable of which occurred in 2012, when Roberts voted to uphold the Affordable Care Act.
However, Roberts has since sided with the liberals at least as many times from 2017 until now, which would suggest he is adopting the swing vote role formerly held by Kennedy. That was the takeaway of Erwin Chemerinsky, dean of University of California – Berkeley Law, who said, “This may be Chief Justice Roberts taking very seriously his role as the median justice and perhaps the beginning of his being the swing justice.”
“But I would not come to that conclusion too quickly,” Chemerinsky added.
Avoiding overt partisanship?
Roberts hasn’t completely abandoned his conservative principles, and has provided key votes on that side on a number of cases over the past couple years as well, such as siding with the Trump administration’s rules to bar transgender individuals from military service or upholding the administration’s travel ban that prohibits entry into the U.S. of individuals from certain dangerous and terrorism-prone nations.
Some court watchers have surmised that Roberts may be attempting to straddle the line in a bid to protect the judicial institution from accusations of overt partisanship, or perhaps even simply buying time for the high court and keeping a “low-profile” while the partisan fervor over the heated confirmation of Kavanaugh dies down, as Chemerinsky believes.
“I think his overall record is likely to remain very conservative, but I also think he will occasionally surprise us,” said progressive attorney Brianne Gorod, chief counsel of the left-leaning Constitutional Accountability Center.
Roberts certainly wouldn’t be the first Republican-appointed justice to disappoint conservatives by shifting into a swing vote role. He would join others former Justices Harry Blackmun, John Paul Stevens, David Souter and, of course, Kennedy, though his shift may not be quite as dramatic as some of theirs.
Ilya Shapiro, an attorney for the libertarian Cato Institute, said, “I don’t think this means he’s changing his mind on the substance of big important issues on which he’s written opinions — voting rights, campaign finance, abortion, gay marriage, etc. But at the margin he’s trying to make fewer partisan splits.”
However, Roberts’ defection could be a moot point if President Trump receives the opportunity in the near future to nominate another justice. Replacing Clinton-appointee Ruth Bader Ginsburg or Stephen Breyer with a conservative would create a 6-3 split in favor of conservatives. Even if Roberts sided with the remaining liberals then, he wouldn’t be able to swing a case in their favor by himself.
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