Did John Roberts doom Supreme Court reform with his decisions?
Chief Justice John Roberts earned the ire of conservatives when, in some surprising recent decisions, he sided with the liberal wing to strike down an abortion law, save immigrants from possible deportation, and extend workplace protections to gay and transgender employees. Yet his moves to the middle will likely assist conservatives in the long run by dooming plans by Democrats to pack the Supreme Court with justices.
Over the last few years, Democrats have started a serious push to change the size or structure of the Supreme Court. The movement for reform was triggered when Senate Republicans blocked Merrick Garland for the seat that was vacated by the death of Antonin Scalia in 2016. Majority Leader Mitch McConnell refused to even hold hearings on Garland, and the seat was filled by President Trump, who selected Neil Gorsuch.
As payback for what some call the “stolen seat” on the Supreme Court, Democrats such as Elizabeth Warren, Pete Buttigieg, Cory Booker, and Kamala Harris have called for major reform of the Supreme Court. Until last week, it was expected that if Democrats won back the White House and the Senate in the election this year, they would push to add several justices to the Supreme Court, limit the number of years justices could serve, or other overhauls of the structure of the institution.
Roberts may have thrown a wrench in that plan. His seeming change of heart on issues such as abortion, mmigration, and gay and transgender rights will now make it harder for Democrats to make a compelling case for overhauling the Supreme Court. The remarkable thing is that we have seen this all before. Another justice named Roberts once reversed course in several cases to avert efforts to pack the Supreme Court.
In 1937, President Roosevelt proposed a plan that would allow him to add up to six new justices. The Supreme Court had struck down a number of his New Deal initiatives, and he had been emboldened after his landslide second term victory. Roosevelt claimed the reform was necessary to help the justices keep up with the caseload, but people knew it was an attack on the very legitimacy of the Supreme Court as an institution.
In a case decided a month after Roosevelt announced his plan to pack the Supreme Court, Justice Owen Roberts, who consistently voted down the New Deal initiatives, reversed course and upheld a New Deal law. Halting any political momentum behind the plan to pack the Supreme Court, this about face has been called “the switch in time that saved nine.”
The way Roberts today has voted on abortion, immigration, and gay and transgender rights are remarkable reversals from his votes in past cases. Most starkly, he voted four years ago to uphold abortion restrictions in Texas that were identical to the Louisiana rules he voted to strike down this week. Historians debate whether the change of heart by the earlier Roberts was a response to the plan by Roosevelt, and it seems unlikely that Roberts today was spurred to vote by the threats of reform.
Roberts is deeply committed, however, to protecting the Supreme Court. During his confirmation hearings, he said the role of the chief justice was to preserve the public legitimacy of the Supreme Court as one important institution of the government. He expressed admiration for Chief Justice Charles Evan Hughes, who had steered the Supreme Court through what Roberts called its “high noon showdown” with Roosevelt in 1937.
His own switch in time may also have saved nine. Even with liberal groups announcing plans to highlight the impact of this election on the judiciary, reform is likely to be less of a motivating issue for Democrats on the trail. This will likely be less attractive to those elected from swing states. In an important respect, the 1937 and the 2020 switches are certainly different. The first switch marked a leftward shift in the Supreme Court that lasted until the 1980s. This week, the moderation shown by Roberts has all but guaranteed a conservative Supreme Court for a generation.
Even if Joe Biden wins the White House, he is likely to replace only the two oldest justices, Stephen Breyer and Ruth Bader Ginsburg, who are liberals. There are five conservatives who will endure absent term limits or packing the Supreme Court. Roberts is only 65 years old. The oldest conservative, Clarence Thomas, is a decade younger than Breyer. Gorsuch could serve for 30 more years and still be younger than Ginsburg is now. Liberals can celebrate these victories, however, Roberts and the conservative justices are more likely to remain in the majority for years to come.
Kent Greenfield is a law professor and scholar at Boston College. Adam Winkler is a law professor at the University of California in Los Angeles.