Left-liberal journalist advises John Roberts on how to curry favor with historians

Don't vote like a conservative, she suggests

Liberals never tire of telling Supreme Justices nominated by Republicans how they can gain respect, now and in history books. They can gain it by deciding cases the way liberals want them to.

The latest entry in this tiresome genre comes from the Washington Post’s Ruth Marcus. It’s called “The Tragedy of John Roberts.” Marcus’ newspaper, the Washington Post, gave her three pages to write the piece.

I’ve already summarized it. Here’s the long version.

According to Marcus, the tragedy of John Roberts is that “he has been outflanked and marginalized by five conservative justices to his right, even as he has been subjected to unsparing criticism by those to his left.” Thus, “the chief now finds himself in the unexpected position of being — or at least voting — to the left of the new swing justice, Brett M. Kavanaugh.”

If this constitutes a tragedy, then Elena Kagan’s experience on the Court is a calamity. She’s votes to the left of six Supreme Court Justices, is almost always in the minority in important cases, and exercises no real influence over the direction of the Court.

I’m sure the Chief Justice wishes that he, and he alone, still had the swing vote. But losing that status doesn’t seem like a tragedy. Surely, it’s better to have had the swing vote once (so far) than never to have had it.

Moreover, the chart Marcus included in her article, which attempts to rate the six Republican-nominated Justices by their “ideology,” places Roberts in almost the same position as Kavanaugh. Thus, one realistically can view Roberts and Kavanaugh as forming the swing bloc on the Court., which doesn’t constitute being “marginalized.” (By the way, all three Trump nominees — Justices Gorsuch, Kavanaugh, and Barrett — rate as significantly less conservative than Justices Thomas and Alito on the ideological scale Marcus cites in her article.)

Indeed, Marcus acknowledges that Roberts tied Kavanaugh as the Court member who most often voted with the majority during the last Supreme Court term. That doesn’t sound tragic or marginal to me.

Nor does it support claims by left-liberals like Larry Tribe that Roberts has become “irrelevant.” Less influential than he used to be, sure. But hardly irrelevant. It’s Justices Kagan, Sotomayor, and Jackson who fit that description.

A more realistic assessment comes late in Marcus’ article from law professor Aziz Huq, who serves on the board of the liberal American Constitution Society.

[Roberts] may think the court is moving too fast, but he thinks it’s moving in the right direction.

Marcus argues, however, that the Chief Justice is a failure by his own standard. She cites a 2006 interview in which Roberts said: “It’s sobering to think of the seventeen chief justices; certainly a solid majority of them have to be characterized as failures.” In the same interview, Roberts talked about the danger of polarized politics, and the “high priority to keep any kind of partisan divide out of the judiciary as well.”

Did Roberts really believe this was possible? I don’t know. But no fair-minded historian will view Roberts as a failure for being unable to keep a partisan divide out of the judiciary — and certainly not for failing to keep it out for an entire 17-year period during which American politics became more polarized than at any other time in Roberts’ life.

But the point of Marcus’ article isn’t to offer a fair assessment of Roberts. The point is to advise Roberts to become more liberal. Hence, these final paragraphs, which could hardly be a more blatant plea for Roberts to vote in ways that will please Marcus and her fellow left-liberals:

There is another way for Roberts, who once aspired to be a history professor, to think about his choice: over the long sweep of time. Ineffective now might look heroic decades hence. Roberts can be remembered as the chief justice who went along with the conservative crowd and, in so doing, helped bring disrepute on an activist, radical court. Or he can be the conservative who tried to stop, or at least slow, the tide, lauded for his steadfastness even if it proves unavailing.

History seems certain to remember the Roberts court in a different way than John Roberts once imagined, but he retains the ability to shape history’s verdict on his own performance.

But Roberts’ oath is to the Constitution, not to current or future public opinion. And if we take him at his word, Roberts wants to be a jurist who calls them as he sees them, not as future historians might see him.

Doing so seems like the best way for Roberts to retain credibility with fellow Justices — the ones he wants to influence, both now and in the future, as the composition of the Court changes. Other Justices might be less than eager to coalesce around a Chief whom they believe is more concerned about his legacy than with deciding cases correctly.