by Mitch Kokai
Senior Political Analyst, John Locke Foundation
There’s a wooing going on. John Roberts, the chief justice of the Supreme Court, has been defined as the new “swing vote,” and he’s now the most powerful jurist in the land. And that means the legal Left is beckoning him. How? By putting him at war with himself — setting up a conflict between Roberts the “institutionalist” and Roberts the “originalist;” between Roberts the jurist and guardian of the legacy of the Court and Roberts the “ideologue.”
It works something like this — let’s suppose a key abortion case comes before the court, or the court considers an important conflict between the Trump administration and the special counsel’s office. According to this construct, it’s Roberts the ideologue who would vote to restrict abortion rights. It’s Roberts the conservative who would back the Trump administration. But a chief justice who cared about the institution of the Supreme Court? Well, he guards Roe. He checks Trump. …
… In reality, there is no conflict between originalism and institutionalism. In fact, originalism will do more over the long run to sustain and enhance the institutional legitimacy of the high court than any short-term political calculation. The true threat to the Supreme Court’s legitimacy isn’t any given decision or opinion. No, the true threat to the institution is its outsized role in American public life. Just as America suffers because Congress has ceded much of its authority to the executive, our political culture is dysfunctional in part because the Court has strayed too far from its constitutional bounds. Its unelected, life-term justices have entirely too much power over American lives.