Chief Justice John Roberts has become an issue in the 2020 presidential campaign as conservatives question whether they can rely on Republicans to appoint and confirm judges who will not frustrate and rule against them.
In each of the handful of decisions from the last Supreme Court term that disappointed conservatives, Roberts, who was nominated by President George W. Bush, sided with the liberal bloc. Roberts has now been increasingly disavowed by the party that put him on the nation’s highest court.
Vice President Mike Pence called Roberts a “disappointment to conservatives” last week in an interview with the Christian Broadcasting Network. Sen. Ted Cruz, a Texas Republican, went even further, saying in a tweet, “John Roberts has abandoned his oath.” Sen. Tom Cotton, an Arkansas Republican, asked, “What happened to that judge?”
Pence specifically mentioned “the Obamacare decision” and a “spate of recent decisions all the way through Calvary Chapel.” In several recent rulings on LGBT rights, abortion, immigration, and religious liberty, Roberts cast the pivotal vote that allowed the Democratic appointees on the court to prevail.
President Trump has cited his judicial nominations as a primary reason evangelicals and other social conservatives should support his reelection bid. He won 81% of white evangelical voters four years ago. Neil Gorsuch, Trump’s first Supreme Court nominee, authored one of the opinions that rankled conservatives, but he and Brett Kavanaugh have usually voted against the liberal bloc.
[Previous coverage: John Roberts is voting with liberal justices, but he’s not one of them]
“We remember the issue back in 2016, which I believe loomed large in voters’ decisions between Hillary Clinton and the man who would become president of the United States,” Pence said. “And some people thought that it wouldn’t be as big an issue these days. But I think that’s all changed.”
Trump actually criticized Cruz for supporting Roberts’s confirmation during the 2016 primaries, citing his vote to uphold the constitutionality of Obamacare.
Republican-appointed Supreme Court justices have a long history of letting conservatives down. Earl Warren and William Brennan, two of the main architects of modern liberal jurisprudence, were nominated by Dwight Eisenhower. Harry Blackmun, the author of Roe v. Wade, was put on the court by Richard Nixon. John Paul Stevens, a Gerald Ford nominee, and David Souter, a George H.W. Bush pick, went on to vote with the liberal bloc most of the time.
Even Ronald Reagan had two Supreme Court appointees, Sandra Day O’Connor and Anthony Kennedy, who frequently broke with conservatives, though neither were as liberal as the above justices. The two voted to uphold Roe in 1992, when many conservatives thought the abortion decision would be overturned, with Kennedy writing the opinion. The last Democratic-appointed justice to vote regularly with the conservative bloc was Byron White, who was nominated by John F. Kennedy in 1962.
But Roberts was the first justice picked from an established network of legal conservatives as part of a process explicitly designed to avoid Warrens and Souters. The other Bush nominee, Samuel Alito, was chosen after Republicans balked at first choice Harriet Miers as insufficiently conservative. Now, it is Roberts conservatives want to avoid.
Carrie Severino, president of the conservative Judicial Crisis Network and co-author of a well-received book on the Kavanaugh nomination fight, told the Washington Examiner that Trump valued toughness and political courage in his nominees more highly than Bush did. “If you look at the trajectory, it’s stunning,” she said. “There’s incredible progress being made.”
In 2016, Trump did not have much history with social conservatives. In fact, he had briefly run for the Reform Party’s 2000 presidential nomination as a social liberal. To bridge that gap, he compiled a list of potential Supreme Court nominees approved by top legal conservatives such as the Federalist Society and promised to select from it. Senate Republicans had kept Antonin Scalia’s seat vacant throughout the campaign in hopes a Republican president would name his successor.
Trump kept that promise and has had success working with Senate Majority Leader Mitch McConnell to staff the federal judiciary with proven conservatives. But Roberts’s recent defections have revived conservative suspicions of the court.
Roberts was opposed by half the Democrats in the Senate when he was nominated, including Hillary Clinton and future President Barack Obama. But in recent years, he has become more of a Kennedy-like swing vote on certain polarizing cases. It is widely believed that Roberts wants to protect the court’s reputation for independence from partisan politics by being strategic about when it issues controversial decisions that constitute major change. Democrats have talked about increasing the size of the court if they win the presidency and Congress in November, a move Roberts may wish to forestall.
