Would John G. Roberts Jr. tack to the left to be part of a new majority and maintain control of decisions? Or would he dig in and become an unremitting dissenter, as might have been the way of the late Justice Antonin Scalia?
Roberts, a savvy tactician, appears to be strategically waiting until the political and judicial situation clarifies. He may be adopting the chess-like approach he has used in cases, thinking of each dispute in combination of what might come next. Right now he is holding his moves until it is clear what really is next for the court.
During the session that ended in late June, Roberts veered from patterns of fellow conservatives and muted his response. Anthony Kennedy, for his part, moved to the left, remaining as relevant as before the Scalia fallout. He provided the deciding votes, with the four liberals, to bolster abortion rights
and race-conscious university admissions
Samuel Alito and Clarence Thomas, meanwhile, bitterly warned in dissenting opinions about where the new court is headed, for example, on certain religious rights and gun control.
Roberts said remarkably little as he ended up on the losing side or saw the court deadlock on several closely watched cases this session. He wrote the fewest opinions of all justices, 11, according to a SCOTUSblog count of all majority, concurring and dissenting statements.
Roberts' anger did flash at oral arguments, especially during the challenge by women's health clinics to a strict Texas abortion regulation. But he let Alito and Thomas take the lead in putting frustration and fury down on paper.
If a Democratic president appoints a liberal-leaning justice, Roberts would become the first chief in decades to preside over a court on which the majority holds an opposite ideology. (Republican leaders in the Senate have refused to act on President Barack Obama's nomination
of federal judge Merrick Garland to succeed Scalia, contending the vacancy should be filled by whoever wins the November presidential election and assumes the White House in January.)
A child of good fortune, academic success and stellar credentials, Roberts was 50 when he was appointed in 2005, the youngest chief justice since John Marshall was appointed in 1801. Roberts had argued 39 times before the Supreme Court as a Department of Justice lawyer and then in private practice. Before each argument, he would stop first on the ground floor at a bronze sculpture of the great Chief Justice Marshall and touch it for good luck.
He never seemed to need it.
Fate continued to smile on Roberts. Four months after he was sworn in as chief, Alito, a consistent conservative, succeeded retiring centrist Justice Sandra Day O'Connor. The five-justice majority on the right within months upheld a ban on certain late-term abortions, restricted student speech rights and struck down public school programs that took account of students' race to achieve district-wide diversity. "It is not often in the law that so few have so quickly changed so much," liberal Justice Stephen Breyer said in June 2007 as he dissented from the decision invalidating programs in Seattle and Louisville that used students' race as a factor in school placements.
The same conservative five-justice majority also lifted campaign finance regulations, most notably in the 2010 Citizens United ruling. Roberts became known for shrewdly incremental moves on the law, notably with 2009 then 2013 decisions that ultimately invalidated a provision of the landmark 1965 Voting Rights Act requiring certain states, mainly in the South, to obtain federal approval before changing election rules.
Going into the 2015-16 term, it seemed conservatives would sweep social policy controversies, including disputes over public employee labor unions, the validity of Obama's immigration plan, race-conscious admissions at the University of Texas and abortion rights.
But the February death of Scalia changed all that.
The union and immigration disputes ended with 4-4 deadlocks. When Kennedy moved to the left on cases including abortion and affirmative action, Roberts dropped to the dissent. Kennedy also joined with liberals to rule that a Pennsylvania judge should not have participated in a death penalty case he had handled as a prosecutor decades earlier. In a dissenting opinion, one of the few he penned himself, Roberts revealed his personal "judges know best" confidence. He referred to a longstanding "presumption of honesty and integrity in those serving as adjudicators."
More impassioned was Roberts' dissenting opinion
when a six-justice majority upheld a 2012 act of Congress directing a federal court on the turnover of $1.75 billion in bank assets held in a New York bank account for the Central Bank of Iran and owed victims of terrorist acts sponsored by Iran.
Roberts deemed the 2012 law a legislative encroachment on judicial authority and concluded his opinion with language from a 1988 Scalia dissent warning of changes in the "equilibrium of power." The reference served as a reminder of what might have been this term with Scalia.
Roberts also asserted that Congress and the President could have taken steps to ensure compensation for the terrorism victims without affecting pending litigation. "The authority of the political branches is sufficient; they have no need to seize ours," Roberts wrote.
It was a burst of "don't take what's ours" attitude from a chief justice who, at 61, is still likely young in his tenure and not ready to relinquish the control he held for a decade on America's highest court.