A day before Chief Justice John Roberts Jr. joined with liberals in a 5-4 decision halting implementation of a restrictive Louisiana abortion law, he seemed to forecast that a divided vote was coming.
Asked at an event in Nashville, Tennessee, on Wednesday whether he was making progress in his goal of reducing the number of 5-4 decisions, Roberts said, “Well, you know, some days are better than others.”
He added, “I have eight extraordinarily accomplished colleagues who work hard and have a particular view, and they, I think, also are committed to having us work together as much as possible. I think unanimous, or close to unanimous, decision is much more effective, much more acceptable, than a sharply divided five-four, or even worse, you know, four-three-two.”
Roberts made the comments at Belmont University College of Law, where former U.S. attorney general Alberto Gonzales, who first interviewed Roberts as a prospective justice in 2005, is dean.
Even though Roberts signed on to a divided 5-4 opinion, he may have done so to defuse the abortion issue for the time being and make the outcome seem less driven by ideology or policy preferences. Cornell Law School professor Michael Dorf in a blog post Thursday night stressed the importance of Roberts’s move. “The abortion right is not safe,” Dorf wrote. “But it’s not in quite as much immediate danger as one might have thought. And that’s not nothing.”
The chief justice’s yearning for conciliatory and take-it-slow decision-making may be intensifying with the departure of Justice Anthony Kennedy last July and the arrival of his successor, Brett Kavanaugh, who over time may prove to be a more hard-line conservative than the “swing vote” Kennedy. Kavanaugh voted with his conservative colleagues in Thursday night’s order, and he additionally wrote a solo dissent.
Roberts has even suggested that in the interest of avoiding sharply divisive rulings, he would repress his own opinions.
During his confirmation hearing in 2005, Roberts famously described his role as that of calling balls and strikes, a position that does not allow for much play in the joints. But last July, days after Kennedy announced his retirement, Roberts offered a new definition at a conference of the U.S. Court of Appeals for the Fourth Circuit.
“I feel some obligation to be something of an honest broker among my colleagues and won’t necessarily go out of my way to pick fights,” Roberts said. At times, he added, “you would sort of sublimate your views.”
In his Nashville conversation, Roberts also downplayed the role of the high court—and the chief justice. Noting that few chief justices are household names, Roberts said: “My point is that you’re not guaranteed to play a significant role in the history of your country and it’s not necessarily a bad thing if you don’t.”
Roberts also said that “the people who drafted the Constitution, most of whom had risked their lives in the Revolution, and all of who had undertaken great sacrifices to have the opportunity to govern themselves, they would not have sat around in Constitution Hall and said, ‘I’ve got an idea, let’s pick a handful of guys who aren’t elected, who can’t be replaced, and let’s have them make all the hard decisions.’”
With that modest role in mind, Roberts said in Nashville, “I do think it’s a worthy objective—not at all costs, I mean—if you have strongly held views on a particular approach to a case, and that results in a five to four decision, well, that’s the way it is. But I do think it’s worth trying to get broader views.”