Why Chief Justice Roberts Could Resign

Written by Tom Cantlon   
Monday, 21 September 2020 14:17

by Tom Cantlon

It was announced the evening that this is being written that Ruth Bader Ginsburg has passed. The accolades and celebrations of her life, some already started and much more to come, are well deserved.

Senate Republicans have already said they want to hold a vote on a Trump appointee to replace Ginsburg despite it being so close to a presidential election, and to a possible change in Senate control. Or actually it's as much because of that. That urgency also means that whereas moderate Republican senators might normally balk at some ridiculous nominee, under the circumstances they may well feel compelled to get someone, anyone, in place before control changes.

If that happens we could end up with one of the more ridiculous people on Trump's list, such as Senator Ted Cruz (R-TX) or Trump appointed Judge James Ho, both of whom have shown themselves proud to trumpet extreme reactionary positions and ideas (see references below).

Chief Justice John Roberts would likely be mortified at such a situation. While he is certainly conservative, he has shown himself willing, even eager, to prove the court's independence. While generally agreeing with the conservative members he has repeatedly been the swing vote agreeing with the court's liberal members, on the Dreamers immigration issue, on the Obamacare/Affordable Care act, and on certain abortion restrictions. During the current pandemic he agreed with them on an issue regarding pandemic restrictions which drew the public ire of none other than Ted Cruz.

He has also been active in giving talks and interviews to try to bolster the court's reputation and trying to dispel an image of partisanship within the court, "That's not how we at the court function."

So what could he do to improve the reputation of the institution he clearly cherishes if a Justice Cruz or a Justice Ho are appointed?

Resign. Not so much in protest, though that would be true in part, but more to give the court the opportunity to restore greater balance and in so doing restore the impression of the court's impartiality and some of the courts integrity. Resign, that is, after the inauguration if Democrats take the presidency and the Senate. It would not endanger the conservative majority, which he no doubt wants. It would still be a 5/4 split if he were replaced with a Biden appointee. He would probably be confident Biden would choose someone who, while inclined liberal, would be well qualified and further enhance the court's integrity. And that appointee, or one of the existing liberal members of the court, would become the new Chief Justice. It would be a court with a conservative majority but with a strong position to claim its balance and impartiality. It's reputation would be bolstered by a remarkable sacrifice by Roberts, done entirely to assist the court in a challenging time, and which would mark his place in history as one giving such an exceptional sacrifice for the court. It would be a powerful statement about how important the integrity of the court is.

Is it likely? Hard to say. It's easy to think not, but then Roberts seems to see a contrast between being part of current conservative trends versus what's best for the court, and he has staked his claim to valuing the court first. And it depends on how damaging Trump's choice turns out to be.

If that choice turns out to be particularly damaging, and if this option of resigning gets discussed in legal circles, maybe Roberts will get wind of it and consider it.


Tom Cantlon is author of US: Everything is Done By US. We Can Make it For US, and a columnist providing an alternative view for a daily paper in a small, right-leaning Western city.



James Ho is extreme


Cruz criticizes Roberts


Roberts quote




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