Editorial: Chief Justice Roberts needs to retire
In light of Justice Stephen Breyer announcing his retirement, it’s time for another member of the Supreme Court to follow suit. Chief Justice John Roberts should announce his retirement to allow his seat to be filled before the midterm elections.
Jan 31, 2022
This year, the Supreme Court will lose a liberal champion. Nominated by former President Bill Clinton in 1994, the retiring Justice Stephen Breyer has been a stalwart defender of progressive ideals, passionately arguing against capital punishment while striking down unconstitutional attempts to overturn abortion laws. His retirement comes after months of Democratic mobilization, agitating for the justice to retire as soon as possible in order to avoid a Republican president nominating his replacement. Now, it’s time for the activists who called for Breyer’s retirement to mobilize for another cause: the retirement of Chief Justice John Roberts. Under President Joe Biden, the retirement of the chief justice in 2022 would restore ideological balance to the Court, eliminating a 6-3 conservative majority that is threatening basic human rights such as abortion and ballot access. This move would also assert the independence of the judicial branch.
During his time as Senate majority leader, Mitch McConnell refused to grant even a basic hearing to former President Barack Obama’s replacement for the late Justice Antonin Scalia, citing the fact that 2016 was an election year and that voters deserved a say in selecting the next nominee. Later, during the election of 2020, McConnell rushed to confirm Amy Coney Barrett to the Court, in defiance of the late Justice Ruth Bader Ginsburg’s dying wish. As such, the ideological balance of the Court has shifted even further in favor of conservatives, from a 5-4 to 6-3 conservative majority.
In the past several years, the chief justice has sided with his liberal colleagues on a number of high-profile cases. He voted to save DACA, protecting immigrant children from former President Donald Trump’s xenophobic policies. He protected the right to vote during the 2020 election by ensuring the constitutionality of mail-in ballots. He also saved the Affordable Care Act, Obama’s signature domestic policy win. While a conservative, Roberts is undoubtedly the ideological center of the Supreme Court because of rulings like these.
If the chief justice waits until after 2022 to retire, it’s likely that he will be replaced by a ultra-conservative ideologue. With Democrats facing difficult odds to hold the Senate in 2022, and prominent conservative Senate candidates trumpeting the endorsement of far-right U.S. Rep. Marjorie Taylor Greene, a Republican from Georgia, it looks like the conservative movement is looking for justices who seek conquest rather than compromise. Democrats also seem unlikely to reclaim power after 2022, too, with parties waiting an average of 14 years to regain control of the presidency, house and senate after fully losing power. If Roberts wants the court to continue protecting DACA rights and the ACA, among other things, he should retire under Biden so that he is not replaced later by an apologist for the far right.
In response to a statement from Trump that demeaned members of the court, Roberts asserted the judiciary’s independence in 2018 by declaring that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Now, it’s time for the chief justice to prove that he means it. What better way to show the American people that the Supreme Court is an independent institution, separated from the rough and tumble of politics, than for a conservative to have a replacement nominated by a Democratic president? By allowing Biden to choose his successor, Roberts would demonstrate the strength of his convictions and show that he is not a “Bush judge,” but rather an American judge.
The retirement of Roberts would reassert the strength of the judiciary as a whole. Over the past several years, the Supreme Court and federal bench have been wedded to partisan battles and outside groups. As a candidate in 2016 and 2020, Trump released shortlists for potential Supreme Court nominees in order to assuage the concerns of establishment Republicans that he was insufficiently conservative. In doing so, he explicitly linked the executive branch to the judiciary, compromising the ability of the latter to impartially check the former in constitutional matters.
Conservative groups have become increasingly relevant in lobbying for specific potential nominees. Indeed, Barrett received assistance from the Koch-run foundation Americans for Prosperity in the form of a seven-figure ad buy, encouraging senators to support her nomination. Later, she refused to recuse herself from a case involving AFP. By retiring now, Roberts can show the conservative organizations that seek to buy his replacement that they have no home on the Supreme Court.
In his year-end report, Roberts stressed the need for the Court’s political independence, implicitly speaking against liberal plans to add more justices to the court. Roberts has demonstrated, throughout his career, that he has a deep reverence for the institution of the Supreme Court. If he wants to protect the judiciary from Democrats who wish to add seats to the Supreme Court, he should restore balance to the institution by retiring immediately.
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