Chief Justice John Roberts defends Supreme Court's legitimacy

Chief Justice John Roberts – making his first public comments since the US Supreme Court reversed Roe v. Wade last term, triggering demonstrations across the country – defended the legitimacy of the court Friday night while also acknowledging it had been “gut-wrenching” to drive into a barricaded high court every morning.

Roberts, without directly mentioning protests, said that all of the court’s opinions are open to criticism, but he pointedly noted that “simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court.”

He said that it’s the court’s job to interpret the Constitution – a task that should not be left to the political branches or driven by public opinion.

Speaking to an audience of judges attending the 10th Circuit Bench and Bar Conference in Colorado Springs, Colorado, Roberts noted that the metal barricade that had been installed around the building is now down, and he announced that when the justices return to the bench to start a new term next month, the public will finally be able to attend arguments in person once again.

Justice Neil Gorsuch, who oversees the 10th Circuit and had spoken Thursday, sat in the front row for the chief justice’s remarks.

Acknowledging that the last year had been “difficult in many respects,” Roberts said he and his colleagues are working to move beyond it.

“I think just moving forward from things that were unfortunate is the best way to respond,” he said.

He also praised his newest colleague, Justice Ketanji Brown Jackson, and announced she will have her formal investiture on September 30. “She is going to be a wonderful justice,” he said.

Roberts spoke less than a month before a new term is set to begin as the court and the country are still digesting the tumult of rulings in an array of deeply divisive cases, the unprecedented leak of a draft opinion and glimpses of the growing tension on a court driven by an aggressive conservative majority.

The new term will launch on October 3 in the shadow of the midterm elections and the justices will consider issues that deeply divide the public, including affirmative action, voting rights, environmental regulations, immigration and religious liberty.

At oral arguments and at conference, Roberts will attempt to set the tone of the proceedings, carefully navigating a court consisting of six Republican appointees and three Democratic ones, including Jackson, who was sworn in on June 30.

Roberts finds himself in an unusual spot, complicated by the fact that there are now five justices to his right who have shown an inclination to reject incrementalism in favor of sweeping opinions that at times overturn precedent. It may be called the “Roberts Court,” but the chief justice only gets one vote and he has at times cast it with a particular sensitivity to institutional concerns.

“This term will again test the chief’s influence over the conservative wing of the court, in particular,” Gregory G. Garre, a lawyer at Latham & Watkins who served as solicitor general during the George W. Bush administration, said in an interview.

Roberts has joked before about the limits of his role.

“I did learn early on that when you are holding the reins of leadership you should be careful not to tug on them too much – you will find out they aren’t connected to anything,” Roberts said to laughter during a 2016 appearance at New England Law.

Last term, Roberts’ conservative colleagues left him behind in the historic abortion case, Dobbs v. Jackson.

Roberts would have allowed the controversial Mississippi law that would have limited abortion access to 15 weeks after conception to take effect, but said he would stop short of reversing Roe, a landmark opinion that had been on the books for almost 50 years. “I would take a more measured course,” the chief wrote. No other justice joined him in perhaps the most important case the court will have decided during his tenure.

“As the Dobbs decision underscored last term, as just one of six justices in the conservative majority, the chief no longer has control over the outcome or breadth of decisions,” Garre said.

This term, however, could produce a different narrative as Roberts likely joins his fellow conservatives as the justices consider two areas: affirmative action and voting rights. In past cases, Roberts has made clear that he is skeptical of racial preferences, and he has voted to narrow voting rights.

“In prior cases, the chief himself has led the conservative justices in pushing back on the use of race in this context,” Garre said. “But the chief’s institutionalist instincts may lead him to push for a ruling that at least stops short of overruling precedent in this area.”

The affirmative action cases will be heard on October 31, as the justices consider the use of race as a factor in college admissions at Harvard College and the University of North Carolina. (Jackson will not participate in the Harvard case.)

Roberts was in dissent in 2016 when the court upheld the race-conscious admissions program at the University of Texas.

In addition, in a 2007 case with Roberts in the majority, the court struck down race-based public school assignment programs in Seattle and Louisville.

“For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way to achieve a system of determining admission to the public schools on a nonracial basis, is to stop assigning students on a racial basis,” Roberts wrote. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

In 2014, the court upheld a Michigan ballot initiative that barred race-based preferences as a part of the admissions process for state universities. Justice Sonia Sotomayor wrote a rousing dissent, pointedly repeating some of Roberts’ own language in the 2007 case. Roberts responded.

“The dissent states that ‘the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.’ And it urges that ‘[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here,’” Roberts wrote.

“But it is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and — if so — that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

The court will also examine the scope of Section 2 of the historic Voting Rights Act that bars regulations that result in a denial or abridgment of the right to vote on account of race. The law has become a major tool to prohibit discrimination in voting.

At issue is a lower court opinion that invalidated Alabama’s congressional map as a likely violation of the law. The lower court ordered another majority Black district to be drawn. But in February, a 5-4 Supreme Court froze that ruling at the request of the state, allowing the current maps for now, and agreed to hear the dispute this term.

Roberts sided with the liberals in dissent arguing that the majority was wrong to freeze the lower court ruling. “The District Court properly applied existing law in an extensive opinion with no apparent errors for our correction,” Roberts said. But critically, Roberts added that although he would not have granted a stay, he did think the court should hold oral arguments “to resolve the wide range of uncertainties arising under precedent.”

Supporters of voting rights are on edge – cognizant of the fact that in 2013 Roberts wrote an opinion that effectively invalidated a separate section of the law that required states that had a history of discrimination to obtain federal approval before changing election laws.

“Things have changed in the South,” Roberts said at the time.

At the time, Justice Ruth Bader Ginsburg wrote a scathing dissent arguing that the court’s move was akin to “throwing away your umbrella in a rainstorm because you are not getting wet.”

Both disputes and an array of others will come as the court’s approval rating is at a new low, and some of the opinions of last term placed the justices in the center of the political debate. In addition, the court is still grappling behind the scenes with an investigation into the leak of the Dobbs draft. Although, in public, the justices continue to stress the importance of civility, last term’s decisions showed new strains.