The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

N.Y. Times Opinion: "If Only John Roberts Would Retire"

No, it wasn't my column.


The New York Times opinion page published an essay titled, "If Only John Roberts Would Retire." No, I didn't write it. But columnist Pamela Paula made many arguments I've made before:

In retiring at age 67, Roberts could make a statement about the perils of a gerontocracy and the possibility of Supreme Court term limits, even if only self-imposed. He could help forestall constitutional changes to the court that might be welcome by those on the left while they remain in power and abused by the right when they are not. In retiring, he could help restore public confidence in the court and ensure its future. . . .

Consider what happens if he stays. He's already sullied his reputation on the right, having been bludgeoned by his critics, notably Trump, for years. He's utterly failed liberals and moderates. His legacy would be one of ongoing ineffectiveness for all parties.

Retirement would make Roberts a hero for many. He could stand up for his principles, as articulated in his opening statement during his confirmation process. ("If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court.") He could enable President Biden to appoint a new chief justice, someone who could restore a smidgen of balance to an institution ideologically out of whack.

In retiring, Roberts could help the court move toward positions that more broadly reflect the opinions of most Americans, rather than those of an extremist faction.

Pamela Paul cites several people who floated the idea long after I did so. Indeed, I made this point shortly after Justice Ginsburg died, before Justice Barrett was confirmed. But, alas, no credit.

I'm not the first to suggest that Roberts show himself the door. A Politico columnist, John F. Harris, floated the idea in February, quoting Roberts from his confirmation hearings: "Umpires don't make the rules, they apply them … They make sure everybody plays by the rules, but it is a limited role." Earlier in his career, Roberts famously said that he believed in "the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more." Clearly, the insurgents on the court don't play by the same rules as the incrementalist Roberts or care a whit for his inclination toward restraint.

If the Chief was going to retire in some act of magnanimous balance, he would have already done so. What could be better than stepping down with a 50/50 Senate? King Solomon and Cincinnatus couldn't have created a better setup. But, no retirement is on the horizon. Roberts will likely try to break Chief Justice Marshall's thirty-four year tenure in office. If the super-duper-long game goes to plan–really the game of life–Roberts would still be in office in the year 2039, at the age of 84. Justice Thomas would be 91. (Justice Stevens retired a month shy of his 90th birthday.)

Paul also says the quiet part out-loud. Progressives place pressure on conservative jurists in hopes of moderating or "evolving" them:

But it's hard not to hope. After all, liberals have a long, idealistic history of hoping Roberts would be better than our worst fears. We hoped he might prove a wild card, another David Souter. We hoped he might evolve, another Harry Blackmun. We even hoped he might become a crucial swing vote, another Anthony Kennedy. (In fact, he has swung infrequently and rarely on pivotal cases.) And we hoped he might be a force of persuasion with his fellow Republican appointees. (For seven months, he tried to move the deciding justices on Dobbs v. Jackson Women's Health Organization; nobody budged.)

Liberal hopes for Roberts date back to his nomination. He seems like he could be a decent guy, we said at the time. So earnest. He smiled. There was none of the preening smugness of Antonin Scalia. This was no glaring Clarence Thomas, who famously said to his clerks, "I ain't evolving."

Dobbs is so significant because the Court's most recent appointees said "no thank you" to this pressure campaign. The Souter-notion of "legitimacy," like Roe itself, is buried. Paul and her colleagues can continue writing the same op-ed over and over again, and it will make no difference.