With Kennedy Gone, Roberts Will Be the Supreme Court’s Swing Vote

WASHINGTON — The retirement of Justice Anthony Kennedy is likely to thrust Chief Justice John Roberts into the court’s ideological center, making him the deciding vote on abortion, gay rights and affirmative action cases alongside a newly solidified conservative majority.

For the past dozen years, Kennedy has sat in the ideological middle of the polarized court, with four liberal justices to his left and four conservative ones to his right, according to scores based on their voting patterns. His retirement will almost certainly mean that position goes to Roberts, potentially encouraging him to be more moderate.

The chief justice, a conservative nominated by Republican President George W. Bush, has drifted slightly to the left in recent years, drawing howls of protest from activists on the right who have complained he has proved to be a disappointment. But other than two votes upholding the Affordable Care Act, Roberts, 63, has reliably sided with the court’s other conservatives.

With Kennedy’s departure and the likelihood that President Donald Trump will succeed in winning confirmation of a conservative successor, the question is whether Roberts — an incrementalist who is passionate about preserving the institutional integrity of the court — will inch further toward the center.

“If Roberts stays right where he is now and he becomes the median, it could pull the court quite a bit to the right,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “He will prefer to try to form a coalition with the other conservatives, although he will occasionally side with the liberals.”

Justice Sandra Day O’Connor became more moderate when Justice William Brennan and Justice Thurgood Marshall left the court, said Michael Dorf, a Cornell Law School professor who clerked for Kennedy, and Kennedy likewise moved to the center when O’Connor departed.

“It could manifest in compromise positions in his taking substantively more moderate stances on issues,” Dorf said. “He might want to go slowly before taking an abortion case or an affirmative action case, or a same-sex marriage case to potentially overturn Justice Kennedy’s handiwork.”

A 2015 study in The Journal of Legal Studies, and related data ranking the justices in ideological order, found that Roberts voted in a conservative direction 58 percent of the time over the last decade but leaned right when it mattered most. “He is a reliable conservative in the most closely contested cases but moderate when his vote cannot change the outcome,” the study said.

Dorf said Roberts might act differently now that Kennedy — often the deciding vote in those cases — is gone, much like congressional leaders spare their most vulnerable members of Congress from casting deciding votes on politically difficult issues.

But William Baude, a law professor at the University of Chicago who clerked for Roberts, said there is no reason to believe he will evolve with a newly constituted court.

“I don’t think he’s really changed — he’s been the same chief justice all along — and people who want someone who’s ideologically reliable are sometimes going to be disappointed by that,” Baude said. “People made fun of him for describing the role as an umpire calling balls and strikes, but I think that’s really the way he sees it.”

During the Supreme Court term that just ended, Roberts voted with the majority in divided cases more often than any other justice.

The result was a set of deeply conservative rulings, including one upholding Trump’s travel ban and another dealing a sharp blow to public unions. But he is also regarded as an incrementalist who prefers a slow, step-by-step process for staking out a position, shying away from big, bold precedent-shaking decisions.

“On a lot of major decisions, he already has been the swing vote, so it’s not an entirely new scenario,” said Carrie Severino, the chief counsel and policy director at the Judicial Crisis Network, a conservative legal group. “He is someone who would rather answer smaller questions.”

Severino said that makes Roberts something of a “wild card” on the question of whether to overturn Roe v. Wade, the 1973 decision that established the constitutional right to an abortion. “I don’t think anyone knows what Chief Justice Roberts would do in those circumstances,” she said.

Yet he is also seen as someone who cares deeply for the court’s institutional reputation, and someone who would like to avoid rulings that make the Supreme Court appear to be just another partisan actor, with Republican-appointed justices voting in one direction and liberal justices unanimously on the other side on a politically charged issue.

David Cohen, a law professor at Drexel University, said some progressives hope that that instinct might steer Roberts away from overturning Roe or from invalidating same-sex marriage just a few years after it was decided because a Republican president was able to appoint two new justices.

“The best hope is to appeal to the chief’s sense of the court as a special, above-politics institution,” Cohen said in an email. “Overruling either of these cases in these circumstances would make the court and its justices appear like petty politicians.”

On the other hand, he added, Roberts may see the allure of presiding over the court that succeeds in undoing precedents reviled by conservatives.

“After all, these justices don’t get to the point they are at in life without being political actors,” Cohen said, “and this may be his political goal.”