Meanwhile, the justices face sensitive decisions about how to respond to the highly unusual breach of secrecy demonstrated by the draft opinion’s unauthorized publication, which has unleashed suspicion inside and outside the court. Roberts has promised an investigation, but longtime court observers and other legal analysts say conducting such a probe presents the justices with a slew of thorny questions about who should handle the inquiry, what tactics to employ and how to handle disagreements among the justices about those issues.
Achieving consensus on those issues could be difficult under any circumstances, but may be particularly difficult for Roberts, who has encountered tensions with conservatives both on the court and in the larger political community in recent years.
While Roberts is a conservative and has sided with his Republican-appointed colleagues again and again in cases involving voting rights, campaign finance and affirmative action, he seemed at times more like a swing justice on other issues, particularly over the past decade.
However, in a series of politically-charged cases, Roberts sided with the court’s liberals to uphold the Affordable Care Act’s individual mandate, reject then-President Donald Trump’s repeal of protections for so-called Dreamers, and foil Trump administration plans to add a question about citizenship to the 2020 census.
Of those rulings, the Obamacare one ruffled the most feathers because Roberts reportedly reversed his position days before the decision was announced, ultimately voting to find the law constitutional.
“There is a price to be paid for what he did. Everybody remembers it,” said an attorney close to several conservative justices, who was granted anonymity due to the sensitive nature of the court’s arguments.
Many court watchers see such fallout in the court’s handling of the abortion case it is now considering. Under the court’s usual procedures, Roberts could have assigned the majority opinion to himself if he joined the court’s five other GOP appointees to uphold the Mississippi law banning abortion at 15 weeks.
However, the draft majority opinion wound up being written by Alito, and its strident text signals it is unlikely Roberts will be on board.
That gaping divide on an issue at the forefront of the conservative legal movement for decades threatens to make him a less impactful manager of the judicial branch’s conduct, legitimacy and legacy, many Supreme Court experts contend.
“There are certainly signs that this is not really Roberts’ court,” said Thomas Keck, a professor of constitutional law and politics at Syracuse University.
“There does seem to be some bitterness among the other justices,” said Curt Levey, a conservative attorney and veteran of several Supreme Court confirmation battles. “There probably was a time when Roberts could’ve convinced one of the other conservative justices [in the pending abortion case.] He might well have succeeded in that a few years ago … Maybe this is the ultimate payback that in the most controversial of all cases and the biggest threat to the legitimacy of the court that he no longer has the persuasive power.”
Others say those who expect Roberts to “control” the court misunderstand the job and that a chief justice is little more than a referee.
“This isn’t the Army chief of staff,” said Garrow, whose writings on the history of Roe are cited in Alito’s draft opinion. “It’s one of nine and you’re more an equal than a superior…. The power of the chief justice is a power of persuasion. Period.”
“Anybody who says Roberts has lost control of the court simply doesn’t know any Supreme Court history because there have been plenty of chief justices who did not control the court,” Garrow added.
To some extent, Roberts is also now a victim of the expectations he set for himself by publicly and repeatedly embracing the goal of building consensus on the court. Speaking at a legal conference in Atlanta last week following POLITICO’s disclosure of the draft abortion opinion, he hinted at the perils of that approach and suggested he’d lowered his own horizons a bit.
“I learned on the court unanimous means 7-to-2,” Roberts joked, according to the Washington Post.
Still, some of the challenges Roberts now faces to his ability to lead and influence the court are hard to paint as the product of any failure on his part.
“I think it’s more about the math than anything else,” said historian and American University professor Stephen Wermiel. “He was the swing vote because he was the swing vote. He doesn’t hold that position any more.”
But other court watchers say the situation diminishing Roberts’ power isn’t entirely the product of external forces.
“Part of it is nothing he could have done anything about,” said Levey, who works for the Freedomworks Foundation and the Committee for Justice. “Part of it is who he’s alienated on the court.”