WASHINGTON (CN) — For nearly two decades Chief Justice John Roberts has sat at the helm of one of the most powerful bodies in the nation as it has reshaped laws on abortion, gun control, voting rights, campaign finance and more, but there is only one issue that keeps the Bush appointee up at night.
“The hardest decision in 18 years I had to make was whether to erect fences and barricades around the Supreme Court. I had no choice but to go ahead and do it,” he said at a dinner Tuesday night hosted by the American Law Institute in Washington.
Eight-foot-high metal fences walled off the pristine marble palace last year after a leaked opinion revealed the Supreme Court planned on curbing abortion rights by overturning Roe v. Wade. At the high court — and across the country — protesters gathered outside the barricades to chastise the high court for using its conservative majority to take away a right enjoyed by Americans for 50 years.
“This was exactly the kind of nightmare that John Roberts has hoped never to have,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone call.
Over his tenure, Roberts has carefully shaped a legacy of political moderation, convincing the American public to trust him. Prominent in the storied history of Roberts’ time on the court is his dealmaking that would lead to a ruling saving the Affordable Care Act. Headlines across the country cheered Roberts in 2020 for his cooperation with his liberal colleagues across the aisle. But the Bush appointee's time on the court also includes curtailing the Voting Rights Act and rolling back campaign finance regulations.
The more conservative details of Roberts’ tenure on the court have been shaded by the institution’s rightward shift in recent years. In 2021, he achieved a near anomaly in modern politics when he beat out all other U.S. leaders in approval polling, earning high marks across the political spectrum. Simultaneously, Americans were giving the Supreme Court its lowest ratings on record.
As the conservative supermajority continued to reshape laws around religious liberty, the Second Amendment and the administrative state, Roberts leaned on the authority he created as the court’s institutionalist protector.
“Those were cases that were decided on the merits, and in his mind, under the rule of law,” Gostin said.
Roberts acknowledged public dissent toward the court's more controversial rulings but still held out hope for the high court’s legitimacy.
Dobbs v. Jackson Women’s Health Organization revealed the cracks in that armor. In the wake of the leaked draft opinion, the ensuing opinion that overturned the federal right to abortion deepened the divide on the high court’s bench itself and between the justices and the public. The dealmaking prowess Roberts wielded to uphold Obamacare no longer held sway with the conservative supermajority. Powerless to stop the majority from completely overturning Roe, Roberts was left to pick up the pieces resulting from the majority's decision.
“The fence to him is a symbol,” Gostin said. “It's a symbol of division within the court. … The lack of amiability amongst justices that Dobbs produced and then the unraveling of public trust and confidence in the Supreme Court is all just Chief Justice Roberts’ worst nightmare.”
The Supreme Court’s rulings have strayed from public opinion before but never so much so that the Supreme Court steps became an image of that separation.
“His whole career was about building an open and free and highly trusted Supreme Court,” Gostin said. “That dream, all that he’s worked for all of his life, has crumbled, and the fences around the court are a poignant symbol of that.”
So, for Roberts, erecting a public symbol antithetical to everything he spent his career working to protect proved more challenging than any other on the high court’s docket.
The fences that served as a physical reminder of the divisions plaguing the justices were removed prior to the beginning of the new term in October. It’s not clear that the divides playing out on the high court bench, however, will be so easily removed.
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