With some very notable exceptions, Chief Justice John Roberts has generally voted with originalists. His departures were few but famous; Obamacare is still alive and well today because he sided with the progressives in the Supreme Court. But once Justice Anthony Kennedy was replaced by Brett Kavanaugh, Roberts suddenly became the man in the middle. He’s the swing vote.
He isn’t just the Chief Justice. He’s the one person to decide a wide variety of cases going forward. And if you think his appointment by President Bush bodes well for conservatives, think again. Roberts is not an originalist. He has, in the past, leaned to the right, but now with other eight Justices split down the ideological middle, he’s the man with all the power.
In fact, he has more power than anyone in the country short of the President.
This is exactly where he has always wanted to be. In a rare instance of clarity, CNN’s Joan Biskupic even declared Roberts is “exercising the power he’s craved.” Many of Biskupic’s assertions are wrong, but the premise for her article is accurate. Roberts has a legacy to build, and he’s going to do that by being controversial, unpredictable, and at times baffling. Today’s example in which he voted against the power of the White House to add the citizenship question to the census betrayed his personal desires. This should have been a no-brainer. One does not have to be a staunch conservative or firm originalist to appreciate the power that was clearly granted by Congress and the Constitution regarding the census. It’s an executive branch responsibility, one they can exercise with wide latitude granted to them. But Roberts saw it differently. He sided with the progressives. He exerted his power.
At 64, Roberts likely has a decade or two in which he can build his legacy. And while judges are supposed to be immune to such personal considerations, judges are also human. Now that Roberts is in the middle, he has the power to tilt the court in whichever direction suits him. Ever since his extremely erroneous Obamacare ruling, I’ve felt his positions are dictated more by how history will remember him than how the Constitution is supposed to be interpreted.
All of this should by extremely worrisome to conservatives. There are cases that he will hear in the near future that will determine the course of our nation, including abortion, gun control, and religious liberties issues. As the wildcard on the court, he is in a position to determine exactly how these cases will go. Other than Kavanaugh, the four right-leaning Justices are safe bets for America. Kavanaugh has demonstrated his own maverick tendencies, but he’s still more conservative than Roberts. As for the four progressive Justices, they will be in lockstep on every issue.
That means Roberts will determine individually how these important cases will go. And his track record is increasingly becoming one where he votes more for the sake of headlines than the Constitution or the American people.
Every presidential election, the Supreme Court is a top consideration for many voters. In 2020, there should be a heightened awareness that Roberts is a centrist. We desperately need at least one more originalist to secure America’s future.
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