The 2016 presidential election generated winners and losers. I want to focus here on one big winner: Chief Justice John G. Roberts Jr.
The first reason Roberts was a big winner is obvious. He gets to continue to lead a moderately conservative court. Had Hillary Clinton been elected, the court would have moved to the left and Roberts would have been forced to fight a rear-guard action to protect conservative precedent.
And that would have caused conflict on the court.
Roberts probably would have followed in the footsteps of former Chief Justice Warren E. Burger, a moderate conservative nominated by President Richard Nixon who presided over a liberal court. Burger was sneaky with his use of institutional powers. For example, he assigned majority opinions strategically. When the chief justice is in the majority coalition in a case, he is charged with selecting who will be the author of the majority opinion. Burger often cast votes contrary to his true interests just to put himself in the position to assign the majority opinion to someone who might water down the views of the liberal majority.
This infuriated Burger’s colleagues and caused considerable hand-wringing on the court. Indeed, to pursue this strategic aim, Burger often passed when it was his turn to vote so he could place himself later in the position to assign the opinion.
This brings me to my second point, which is perhaps more important. There is a strong likelihood Roberts could become the first chief justice in modern history to be both the chief and the median justice — the “swing justice.”
As most readers surely can guess, the median position on the court is important. Why? Because the court requires a majority to make a decision. If you can line up four ideologues on a nine-person court in support of your position, whom else do you need? The fifth. The median. Indeed, any time a justice tries to make one kind of policy, it is possible another justice comes up with something the median prefers. And the median could get five votes to beat the first alternative. Knowing this, justices have strong incentives to cater to the policy desires of the median justice.
This is why Justice Anthony M. Kennedy is so powerful today and why Justice Sandra Day O’Connor was so powerful before him. They were the median justices. And it is very possible that Roberts could soon become the new median.
Now, assume that President-elect Donald Trump, once in office, fills the Scalia vacancy with a conservative. This keeps Kennedy the median. (He is therefore another big election winner.) Next, assume that either Kennedy (age 80), Justice Ruth Bader Ginsburg (age 83) or Justice Stephen G. Breyer (age 78) departs the court. Trump then fills that vacancy with another conservative — one to the right of Roberts. This would make Roberts the new swing justice. He would have the institutional power to assign majority opinions as well as the contextual power as the median justice to influence policy.
Yes, Chief Justice Roberts had a very, very good election night.
Ryan Owens is a professor in political science at the University of Wisconsin and an honorary fellow at the UW Law School’s Institute for Legal Studies.