Regarding Supreme Court Term Limits

Per @JoanBiskupic, Roberts took an extreme view of the presidential immunity case from the start and never bothered to negotiate with the liberals to find a single point of compromise. He was all in for Trump start to finish. https://t.co/OkUXw2c89m

— Mark Joseph Stern (@mjs_DC) July 30, 2024

The chief justice, now 69 and about to begin his 20th term, appears to have abandoned his usual institutional concerns.  

He upended constitutional norms, enlarged the institution of the presidency and gave Trump a victory that bolstered his litigating position even beyond the case at hand, for example, in his attempt to reverse the conviction in his Manhattan “hush money” trial. A jury in May found Trump guilty of falsifying business records.

But the Court must remain independent!

All told, Roberts appears to have reached a turning point. His vision for the high court became more aggressive, and he has perhaps shed the aura of ineffectualness that permeated some public commentary in recent years. 

He kept the most important cases for himself, including one that reversed a 1984 precedent giving federal regulators considerable power over health care, food and drug safety, the environment and consumer affairs. (As chief, Roberts makes most opinion-writing assignments; he regularly keeps important cases, but in the past has shared more and evened out assignments among the eight associate justices.) 

At the same time, his dealings with his conservative colleagues were more agreeable.

The Court’s independence depends very much on its behavior. FDR brought the Court to heel with his threat to expand it. The Court’s refusal to allow an income tax was reversed by Constitutional amendment. Steve Vladeck gave us the history of the modern Court, one created by statute early in the 20th century (Marbury has a lot less to do with it than imagined). Until that reform, the Court’s jurisdiction and, more importantly, control of its docket, was in the hands of Congress via statute. Certiorari was a rare practice of the Court, since what cases it heard were set by law, not the votes of justices. It may have had the power to decide constitutional questions; but it could only exercise it within the confines of the cases it had to hear and could rule on. The Court got more freedom in those decisions by statute. Statute can return the Court to status quo ante at any time and probably needs to, given the Court’s abuse of that power.

To put it bluntly:

The only other justice on the majority side to write separately was Thomas. He fully joined Roberts’ opinion but then questioned the constitutionality of the special counsel’s office. Trump’s lawyers had not challenged Smith’s appointment in this case, and it had been raised by only Thomas during oral arguments. 

Thomas’ solo statement has already had some influence. Earlier this month, US District Judge Aileen Cannon, a Trump appointee, relied partly on that Thomas opinion as she threw out the classified documents case against Trump. 

Thomas, the longest-serving justice on the bench and arguably the most conservative of the nine, has become more influential over the years, to the point that some commentators have declared him more powerful than Roberts. 

Not this year, so very unlike 2022, when Thomas and other conservatives pushed through the Dobbs ruling and Roberts stood alone between embittered factions. The chief justice chided his colleagues on both sides for displaying “a relentless freedom from doubt on the legal issue.” 

This year, he stepped to the right, and he displayed no doubt.

Roberts has been in the Court 20 years; Alito for 18, Thomas for 23. Time for term limits, indeed.

There are many ways to control the Court’s rogue behavior. And even more reasons to do so.