Why C.J. Roberts?

It wasn’t long ago that Josh Blackman came up with the idea that, to avoid court packing, Chief Justice John Roberts should sacrifice himself for the Court.

But there is one possible solution that does not require collective action. Of course, my proposal here is my proposal for all problems afflicting the Supreme Court. A resignation in time could save nine. Hear me out.

The idea was that Roberts, as the ultimate personal human sacrifice in fulfillment of the only real duty of chief justice, the preservation of the Court’s integrity, should resign so that President Biden could name a justice to the Court in his place.

True, there would still be a 5-4 conservative majority. But, for the first time since Fred Vinson, there would be a Democratic-appointed Chief Justice. I think she could deftly guide the Court throughout these tumultuous times far more effectively than Roberts ever could. If she could manage Harvard Law School, she can manage the Supreme Court.

Whether getting a CJ in a four person minority would soothe the savage breast is a mystery since C.j. Roberts, shockingly, didn’t take Josh’s advice. On the other hand, Josh’s assumption that the Dems, with control over the executive and Congress, would totally pack the Court with its reliable votes didn’t pan out either, so at least Roberts didn’t cut his throat for nothing.

And yet, the idea is back.

If liberal dreams — so endearing, so enduring — really did come true, Chief Justice John Roberts would resign. He’s been at it for 17 years. And he’s been incapable of tempering the Federalist Society-stamped fanatics on the right or leading the court toward any semblance of justice for all.

While laying blame on the FedSoc is misguided, laying blame on Roberts isn’t necessarily wrong.

The Times’s Supreme Court correspondent Adam Liptak marked June 24 as “the day Chief Justice John Roberts lost his court,” writing that the five hard-right justices “humiliated the nominal leader of the court and rejected major elements of his jurisprudence.”

What is the job of Chief Justice? On the one hand, the CJ has one of nine votes, no more or less than any other justice. On the other, the Cj gets to assign opinions when he’s in the majority. And on the third hand, he gets to sit at the head of the table at conference and wear velvet strips on the sleeves of his robe if he’s so inclined. Associates justices may as well, though it’s yet to be tested.

Or is the job of chief justice, the only position on the Supreme Court required by the Article III of the Constitution, to ride herd over the other eight so that they protect and defend the institution of the Supreme Court, the integrity of the Least Dangerous Branch, without which the branch, critical to the functioning of our tripartite system of government relying on checks and balances to survive?

In retiring at age 67, Roberts could make a statement about the perils of a gerontocracy and the possibility of Supreme Court term limits, even if only self-imposed. He could help forestall constitutional changes to the court that might be welcome by those on the left while they remain in power and abused by the right when they are not. In retiring, he could help restore public confidence in the court and ensure its future.

A great many tropes have arisen of late due to a certain cohort finding itself out maneuvered by its shameless opposition having gamed its authority to intentionally damage the foundational notions of our Republic, if we can keep it.

Is the Supreme Court a “gerontocracy”? As justices sit with life tenure upon good behavior, it’s entirely up to them and the grim reaper when they decide to vacate their seat. They tend to stick around for a while. A long while. They often start out kinda oldish, although that’s changed, and only get older with the years. After a decade or three, they end up pretty darn gerontocratic. Is this wrong?

People complained that RBG overstayed her welcome, not because she was per se too geronty, but because she could have sacrificed herself to give the party a replacement who would live until they demanded another new replacement. But it wasn’t that they didn’t like RBG anymore because she was too old. It was just that they couldn’t count on her holding onto the seat for the next 40 years, thus preventing Darth Cheeto and Cocaine Mitch from filling it with a Stepford justice.

But when Pamela Paul calls for Chief Justice Roberts to resign for the good of the nation, the reasoning isn’t because he’s too old, but because he’s too reasonable.

But it’s hard not to hope. After all, liberals have a long, idealistic history of hoping Roberts would be better than our worst fears. We hoped he might prove a wild card, another David Souter. We hoped he might evolve, another Harry Blackmun. We even hoped he might become a crucial swing vote, another Anthony Kennedy. (In fact, he has swung infrequently and rarely on pivotal cases.) And we hoped he might be a force of persuasion with his fellow Republican appointees. (For seven months, he tried to move the deciding justices on Dobbs v. Jackson Women’s Health Organization; nobody budged.)

What’s curious is how people believe that “their” justice(s) will invariably rule on their side of the political divide, without regard to what law, reason or the Constitution has to say about it. Sure, Roberts was the devil when the issue is Citizens United or Shelby County, but he wouldn’t have reversed Roe or Casey. The problem for Paul and others was that he couldn’t convince the folks on the right to not take a swan dive off the deep end, and because he couldn’t manage an Earl Warren, the least he could do is let Biden take a shot while he still have the votes in the Senate to put someone else in the big chair. But then, what are the chances the C.J. Kamala Harris would have been able to stop the right wing from diving off the cliff head first?