Linda Greenhouse of the New York Times has been one of the very best Supreme Court watchers for decades, first as a reporter and now as a columnist. So when she observes a potential subtle transformation among a justice, it’s worth paying very close attention.
Her column today, “The Chief Justice, Searching for Middle Ground,” immediately explains that conservative John Roberts has not become a squishy centrist. Nevertheless, she writes “there’s something going on at the court that bears closer watching than it has generally received.”
Roberts, she notes, has been on the opposite side of conservative justices Clarence Thomas, Samuel Alito and Neil Gorsuch three times in recent weeks – and “the court has only issued eight opinions so far this year.”
The first case involves a stay of execution to an Alabama man who killed a police officer; the jury which found him guilty recommended life in prison, but a judge overrode that and sentenced him to death instead. Last April, Alabama’s governor signed a bill intended to end that practice, and now an appeal attempts to save the death-row prisoner’s life with the argument that he should not be executed if the state has done away with the process by which he was sentenced.
In two other cases, Greenhouse suggests, Roberts may have found Gorsuch’s language a bridge too far. In another death-row case that Roberts landed on the other side of the conservatives, “I’m sure I detected the distinctive voice of the newest justice. This sentence, “The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law,” mirrors the condescending civics lesson that Justice Gorsuch administered to Justice Ruth Bader Ginsburg, of all people, in a dissenting opinion last June.”
And then the third case, which Greenhouse describes as a minor one involving the specific language of a statute of limitation claim, she writes: “I can only guess that Chief Justice Roberts, if he was tempted for a split second to view this little case as the dissent saw it, recoiled from Justice Gorsuch’s superheated language. … My sense is that the chief justice reads this heavily freighted political moment as a time to avoid spending the Supreme Court’s limited capital needlessly, in contrast to his junior colleague’s evident desire to make as much noise as he can.”
Greenhouse’s conclusion: “If I’m right, there’s a realignment, however subtle, in progress at the court now that portends a future more hopeful, or at least more interesting, than appeared likely even a few months ago.”
Well then! Might this lead to any optimism that the chief justice could find common ground with Justice Anthony Kennedy on either of the two partisan gerrymandering cases currently before the Court? Greenhouse doesn’t think so. “There’s little reason to expect surprises from the chief justice’s votes on the constitutionality of partisan gerrymanders,” she writes. But might there be any reason?
Roberts left little doubt where he stood during oral arguments of Gill v Whitford last October. In that case, a three-judge panel invalidated the Wisconsin state assembly map as an unconstitutional partisan gerrymander. The districts drawn by the GOP elected 60 Republicans and 39 Democrats in 2012, even when Democrats won nearly 175,000 more votes. The lower court was convinced, in part, by mathematical standards showing the durability and intentionality behind the lines.
The chief justice, however, dismissed the idea that Democrats could never win on these maps.
All of those predictions -- I mean, Bandemer predicted the Democrats would never be able to attain a majority. It was 50/50 the next election, and they got a majority the one after that. You already mentioned Vieth. It was five days, right, after the District Court said, oh, the -- I forget who it was -- Republicans are never going to get elected. And they won every single race. Predicting on the basis of the statistics that are before us has been a very hazardous enterprise.
He famously dismissed the mathematic standards as “sociological gobbledygook” and made it clear that he did not want to involve the Court in constant disputes over map making.
In Roberts’ own words:
“If you're the intelligent man on the street and the Court issues a decision, and let's say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG (efficiency gap) was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes.
“And the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that's going to come out one case after another as these cases are brought in every state.”
At the time, the Court seemed aligned: the four conservatives on one side, the four liberals on the other, Justice Kennedy the deciding factor.
But in December, something surprising happened. The Court decided to take a second partisan gerrymandering case, from Maryland, in which the Democrats used the same aggressive data-mining and sophisticated map-making software to rewire themselves an additional seat in the state’s U.S. House delegation. Oral arguments in Benisek v Lamone will be heard next month, kickstarting whispers and think pieces that, perhaps, by grouping together a Democratic and a Republican gerrymander, a wider consensus might be reached.
If Roberts is concerned about “this heavily freighted political moment” as Greenhouse writes, and if he understands that Kennedy intends to find partisan gerrymandering unconstitutional and involve the courts more deeply, might he want to find a way to make the ruling 6-3 and not 5-4?
To be sure, Greenhouse, the expert, isn’t ready to put Roberts vote in play on partisan gerrymandering. “This column is not — repeat, not — going to argue that our conservative chief justice, John G. Roberts Jr., has morphed into a moderate,” she writes. But Greenhouse also sounds a little surprised to be writing this column about even a subtle shift at the Court. Perhaps things will get “at least more interesting,” indeed.