New York Times Supreme Court reporter Adam Liptak sent up a warning flare for Chief Justice John Roberts from the front page of Monday’s New York Times: It would be “dangerous” for the Supreme Court to be seen as conservative. How convenient. The headline, “As Supreme Court Tips Right, Chief Justice Steers to Center," patted Roberts on the back for his perceived shunning of his more right-leaning Justice colleagues:
In his first 13 years on the Supreme Court, Chief Justice John G. Roberts Jr.’s main challenge was trying to assemble five votes to move the court to the right, though there were only four reliably conservative justices.
Now he faces a very different problem. With the retirement of Justice Anthony M. Kennedy and his replacement by Justice Brett M. Kavanaugh, the chief justice has the votes he needs on issues like abortion, racial discrimination, religion and voting. At the same time, he has taken Justice Kennedy’s place as the swing vote at the court’s ideological center, making him the most powerful chief justice in 80 years.
But all of that new power comes at a dangerous time for the court, whose legitimacy depends on the public perception that it is not a partisan institution. “We don’t work as Democrats or Republicans,” Chief Justice Roberts said in 2016, and he reiterated that position in an extraordinary rebuke of President Trump last month.
The Court’s “legitimacy” is a new concern for the media, which for decades was used to it making “progressive” rulings that furthered the liberal agenda without Democrats having to mess with passing actual legislation. The media's sudden questioning of government institutions and customs is suspiciously convenient.
Various members of the media, which reacted with horror when Trump made an off-the-cuff comment about not respecting the results of the upcoming 2016 election, not only demanded recounts in the vital states after Trump won, but have advocated ditching the Electoral College, wiping out Republican-leaning electoral districts, or questioning the usefulness of the Supreme Court when things don’t go the Democrats’ way.
Liptak found law professors to join in the “slow down, think of your reputation,” chorus (click "expand"):
Controlling the pace of change on a court whose conservative wing is eager to move fast will be the central problem of the next phase of Chief Justice Roberts’s tenure, said Daniel Epps, a law professor at Washington University in St. Louis.
“We do not sit on opposite sides of an aisle,” he said of his colleagues in a speech at the University of Minnesota in October. “We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation.”
The court’s other four Republican appointees -- Justices Kavanaugh, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch -- sent a different message not long after, all attending the annual gala dinner of the Federalist Society, the conservative legal group.
Chief Justice Roberts avoids such events, though he did send along congratulations by video for the group’s 25th anniversary in 2007. Liberal justices have occasionally addressed the annual convention of the American Constitution Society, a liberal group, but court watchers could not recall a show of force like the one by their conservative colleagues in 2018.
But liberals don’t really need a legal infrastructure to push judges left-ward. And liberal justices like Ruth Bader Ginsburg have certainly raised their political voices outside the confines of Supreme Court decisions.
The pushing continued to the very last line:
Even if he wants to avoid major controversies for now, his more conservative colleagues may not let him.
Previously, Liptak used bad liberal talking points in a long lead story in the summer of 2018 that also warned of conservative influence on the Supreme Court: “How Free Speech Was Weaponized By Conservatives.” Seemingly scared of the Supreme Court actually defending political speech, he made much of a statistic that argued the opposite of what he assumed:
The Roberts court does more than hear a larger proportion of cases concerning conservative expression. It is also far more likely than earlier courts to rule for conservative speech than for liberal speech.....
David Marcus at The Federalist shot back, “Maybe the Supreme Court is hearing these cases because they exist. Maybe they aren’t hearing cases involving progressive speech because conservatives aren’t trying to suppress progressives’ speech as much as the reverse.”