'Radical justices running roughshod over procedural norms': Constitutional scholar makes case for John Roberts’ retirement

Although President Joe Biden’s search for a U.S. Supreme Court justice to replace the retiring Justice Stephen Breyer is historic — Biden has promised to give the High Court its first Black female justice — it won’t be a game changer as far as shifting the Court’s liberal/conservative balance. But law professor Ira C. Lupu, who teaches at George Washington University, has an idea that would create such a shift: if Chief Justice John Roberts were to retire and give Biden a chance to nominate a replacement.

Of course, that’s unlikely to happen. Roberts, who turned 67 on January 27, is a conservative George W. Bush appointee — and one of the reasons President Bush nominated Roberts is the fact that he's conservative.

But Roberts hasn’t been as far to the right as Justice Clarence Thomas or the late Justice Antonin Scalia; he has turned out to be relatively nuanced at times. And Lupu argues that Roberts, like Breyer, should step down and let Biden nominate a replacement while he has a chance.

“When Amy Coney Barrett replaced the late Justice Ginsburg in October, 2020, Roberts lost control of the majority of the Court,” Lupu explains in an article published by the American Constitution Society’s website on February 17. “Prior to that time, the Court had been split 5-4 between Republican and Democratic appointees. Roberts could effectively exercise control both by voting with the majority, and shaping its opinion. Those moves typically led him to side with the other Republicans, but he sometimes attracted votes from the Democrats, frequently by finding moderate grounds of decision. And in the crucial decision upholding the Affordable Care Act, Roberts famously joined only with the four Democrats.”

Lupu adds, “Once the Senate confirmed Barrett, however, the Court included five Justices to the Chief’s right: Justices Alito, Barrett, Gorsuch, Kavanaugh and Thomas. They no longer need his vote to decide cases and to write majority opinions. Repeatedly, and with increasing frequency, these radical justices have ignored Roberts’ views, running roughshod over procedural norms and well-established substantive principles.”

Lupu’s argument is that because Roberts has shown himself to be a reasonable jurist, he should retire for the good of the United States and the wellbeing of the U.S. Supreme Court.

“Roberts should announce his retirement, effective at term’s end in June 2022,” Lupu writes. “His retirement would permit President Biden to select a new chief justice, either from the existing Court or from the outside, as Roberts himself was selected. His retirement would return the Court to a 5-4 split, Republicans over Democrats, just as it was on the eve of Antonin Scalia’s death in February 2016. Roberts’ retirement would represent a striking symbol of good faith after the two egregious Republican power grabs — one in early 2016, when Republicans blocked the Obama nomination of Merrick Garland; the other in 2020, when Republicans rushed the appointment of Amy Coney Barrett on the eve of the election.”

The chances of Roberts retiring so that Biden can nominate a replacement are slim; that’s most unlikely to happen — even if Biden nominated someone really centrist. Nonetheless, Lupu’s article is an interesting read.

“Cynics will scoff at this proposal,” Lupu acknowledges. “Why would anyone in good health and in his mid-60’s give up the chief justiceship of the United States? The best answer is that only a patriot, one who deeply cares for the Court and for our troubled country, would do so. That description fits John Roberts. Packing the Court would be imprudent, but unpacking it in this way would be inspired.”