Chief Justice Roberts will be the new 'swing' vote

Chief Justice John Roberts may be the biggest beneficiary of Justice Anthony Kennedy’s retirement. Justice Kennedy has served as the “swing vote” on the Court for much of his tenure, and certainly since the retirement of Justice Sandra Day O’Connor last decade.

However, President Donald Trump will not be looking to appoint a “swing vote.” Indeed, if Justice Neil Gorsuch is any evidence, President TrumpDonald John TrumpTrump says he doesn't want to use 'adversary' to describe Russia Comey urges Americans to vote for Democrats in midterms Roby wins Alabama GOP runoff, overcoming blowback from Trump criticism MORE will try to appoint another reliable conservative.

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Nonetheless, on a court of nine, there will always be some Justice whose beliefs place him or her in the middle among his or her colleagues. Therefore, assuming President Trump’s nominee will not be a swing vote, a sitting Justice will assume that role. It is likely that the new swing vote will be Chief Justice Roberts.

 

As political scientists and legal scholars have expounded, if we arrange the Justices’ beliefs on some one-dimensional scale — most would understand this as ranging from “more conservative” to “more liberal” — some Justice will lie in the middle.

This “median Justice” will predictably be the “swing Justice.” Justice Gorsuch’s voting record confirms his reputation as ideological replacement for Justice Antonin Scalia, whose seat he took.

If President Trump now nominates someone ideologically similar to Justice Gorsuch, the new median Justice will hail from the Court’s existing ranks. Clearly, none of the four Justices appointed by Democrats will be the new median. Of the conservative bloc, Chief Justice Roberts is the obvious median.

Chief Justice Roberts has already sometimes shown himself to be the “swing vote” in some cases. He has occasionally voted with the liberal bloc to form a five-Justice majority where Justice Kennedy has voted with the three other Republican-appointed Justices. Indeed, some conservatives still have yet to forgive the Chief Justice (or President George W. Bush for having appointed him) for his vote to uphold the constitutionality of President Barack ObamaBarack Hussein ObamaTrump has the right foreign policy strategy — he just needs to stop talking The Hill's 12:30 Report — Trump faces bipartisan criticism over Putin presser, blames media for coverage Wall Street Journal editorial board rips Trump on Helsinki: It was a 'national embarrassment' MORE’s health care statute.

Adding to the notion that Chief Justice Roberts will be the new “swing vote” is the fact that, in his role as Chief Justice, Chief Justice Roberts may feel some additional institutional pressure to vote sometimes with the putative minority bloc.

The Chief Justice may vote apart from their personal preferences in an effort to effectively shepherd the entire Court. Indeed, scholars have observed that Justices who have served on the Court before becoming Chief Justice change their voting patterns to some degree after becoming Chief Justice.

What would it mean for Chief Justice Roberts to become the Supreme Court swing vote? Chief Justice Roberts would represent the vote that in close, important cases controls the balance of power. For that reason, just as advocates often have framed their arguments with the goal of attracting the vote of Justice Kennedy, going forward advocates would instead try to appeal to Chief Justice Roberts.

This would increase (even beyond the high point at which it already finds itself) the influence of Chief Justice Roberts over the Court’s jurisprudence. Beyond the power to cast the decisive vote in many cases, the fact is that the Chief Justice always enjoys the power to assign the responsibility of drafting the majority opinion when he is in the majority.

Thus, Chief Justice Roberts would in many cases both cast the decisive vote and then assign the opinion-writing responsibility to the Justice he’d prefer to write the opinion (including himself).

To some degree, the role of “swing vote” might be a burden to Chief Justice Roberts. To the extent that the Chief Justice actively votes with the liberal bloc more often — or perhaps even to the extent that the media portrays the Chief Justice as the swing vote—his standing among conservatives may fall further.

At the end of the day, the increased stature will probably outweigh any burden. Indeed, being Chief Justice means that John Roberts cannot aspire to any higher judicial post (other Justices can at least dream of being elevated to Chief Justice one day). The only persona interest he might seek to further is to further burnish his reputation as Chief Justice, and it seems that serving as “swing vote” would in the long run serve to highlight his reputation as a strong Chief.

Jonathan Nash is the Robert Howell Hall professor of law at Emory University School of Law and the Director of the Emory University Center for Law and Social Science. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law.  Follow him on twitter at @JonathanRNash.