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Chief Justice John Roberts Now Gets To Decide What To Do With His Supreme Court

Roberts, already playing a pivotal role as the chief justice, is now likely to be the center vote on the court as well.

Posted on October 8, 2018, at 5:10 p.m. ET

Jim Watson / AFP / Getty Images

Chief Justice John Roberts has traversed a difficult path leading the Supreme Court since Justice Antonin Scalia died in February 2016.

He has led the court through an extended vacancy, the beginning of the Trump administration, and, just this past week, opened the court's term for a second time with just eight justices.

Now, however, Justice Brett Kavanaugh has been confirmed in the wake of explosive hearings over sexual assault allegations.

The court is back to nine justices, and Roberts finds himself leading a conservative-majority Supreme Court. The question for Roberts is: What will he do with it?

Over the past two and a half years, Roberts worked to keep the court from appearing too politically divided in part by voting with Justice Anthony Kennedy more often than with any other justice. Although they still differed at times, the move tended to decrease the number of closely divided cases and increase the size of the majority on opinions. Roberts also took other steps aimed at supporting the court's institutional integrity, in terms of what cases were granted and how procedural votes were handled.

Chief Justice John Roberts administers the constitutional oath to Justice Brett Kavanaugh. Kavanaugh is joined by his wife, Ashley, and their daughters, Margaret and Liza.
Handout / Getty Images

Chief Justice John Roberts administers the constitutional oath to Justice Brett Kavanaugh. Kavanaugh is joined by his wife, Ashley, and their daughters, Margaret and Liza.

Will Kavanaugh replacing Kennedy change that? Will the circumstances of Kavanaugh's confirmation matter to Roberts or Kavanaugh's other colleagues?

Roberts's studied efforts to maintain stability on the court will now face off against the opportunity to take advantage of the majority he now leads to advance the partisan aims that he previously advocated as a conservative lawyer.

As the chief justice, he holds certain powers — like deciding which justice will write the court's opinion whenever he is in the majority — that he has been honing for the past 13 years. Now, though, Roberts is likely to be the center vote on the court as well, with Kavanaugh more likely to fall to Roberts's right.

In ideologically divided cases, in other words, Roberts will regularly have the ability to decide what the outcome of the case is and who will write the decision.

It is likely that in many of those cases, he will, predictably, side with his conservative brethren. But there also have been signs in recent years that, particularly where the court's institutional integrity is at issue, Roberts could side with his more liberal colleagues, at least occasionally.

There also is a different path, one in which Roberts could try to create a new center on the court — picking off different justices from each side in different cases in order to find compromise solutions. Kennedy regularly sought out such a path in cases with no strong majority in an attempt to put off a significant constitutional decision with a narrow majority.

If Roberts views the court's standing at risk due to the circumstances of Kavanaugh's confirmation, that might be another reason for Roberts to try to do that now.

Nonetheless, that path to compromise — so clearly at play just last week — is less clear now. While justices Stephen Breyer and Elena Kagan have shown openness to such compromise rulings, there's not yet an obvious contender for such a role to Roberts's right. It's also not certain that Roberts would choose to do so.

And that will be, over time, what is learned — whether Roberts's slight moderation in recent years was a move he viewed as a necessity borne of Kennedy's position on the court or a gradual change in his views that was independent of — or at least remained after — Kennedy's time on the court.

On Tuesday, the nine justices of the Supreme Court will meet to hear a pair of cases about federal criminal sentencing law.

The justices will be figuring out their new dynamic, the fifth changed bench in three years, and Roberts will begin figuring out the new court that he's leading — and what he wants to do with it.

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