Speaking to an audience of judges attending the 10th Circuit Bench and Bar Conference in Colorado Springs, Colo., Roberts noted that the metal barrier that had been installed around the building is now down and announced that when the judges return to the bench to begin a new term next month, the public will finally be able to watch the arguments in person once again.
Judge Neil Gorsuch, who oversees the 10th Circuit and had spoken Thursday, sat in the front row for the chief justice’s remarks.
Acknowledging that the last year has been “difficult in many ways,” Roberts said he and his colleagues are working to move beyond it.
“I think moving on from things that were unfortunate is the best way to respond,” he said.
He also praised his younger colleague, Judge Ketanji Brown Jackson, and announced that he would hold her formal hearing on September 30. “It will be a wonderful justice,” he said.
Roberts spoke less than a month before the start of a new term, as the court and the country continue to digest the flurry of rulings in a series of deeply divisive cases, the unprecedented leak of a draft opinion and glimpses of growing tension in a court led by an aggressively conservative majority.
The new term will begin Oct. 3 in the shadow of midterm elections, and the justices will consider issues that deeply divide the public, including affirmative action, voting rights, environmental regulations, immigration and religious freedom.
At oral arguments and in conference, Roberts will try to set the tone for the proceedings, carefully navigating a court made up of six Republican appointees and three Democrats, including Jackson, who was sworn in on June 30.
Roberts is in an unusual spot, complicated by the fact that there are now five justices to his right who have shown a tendency to reject incrementalism in favor of sweeping opinions that occasionally overturn precedent. It may be called the “Roberts Court,” but the chief justice gets only one vote, and has at times cast it with particular sensitivity to institutional concerns.
“This term will again test the leader’s influence on the conservative wing of the court, in particular,” Gregory G. Garre, a lawyer at Latham & Watkins who served as solicitor general during the George W. Bush administration, said in an interview.
Roberts has previously joked about the limits of his role.
“I learned early on that when you hold the reins of leadership you have to be careful not to pull too hard — you’ll find they don’t connect to anything,” Roberts said with a laugh during a 2016 appearance at New England Law.
Affirmative action and voting rights
Last term, Roberts’ conservative colleagues backed him in the landmark abortion case, Dobbs v. Jackson. Roberts would have allowed Mississippi’s controversial law that would have limited abortion access to 15 weeks after conception to go into effect, but said he would stop short of overturning Roe, a landmark opinion that has stood for nearly 50 years. “I would take a more measured course,” the chief wrote. No other justice joined him in perhaps the most important case the court will decide during his tenure. “As the Dobbs decision highlighted last term, as only one of six justices in the conservative majority, the leader no longer has control over the outcome or scope of decisions,” Garre said. That term, however, could create a different narrative, as Roberts likely joins his fellow conservatives as the justices weigh in on two areas: affirmative action and voting rights. On previous occasions, Roberts has made it clear that he is skeptical of racial preferences and has voted to restrict voting rights. “In previous cases, the chief himself has led conservative judicial authorities to push back against the use of race in this context,” Garre said. “But the leader’s institutional instincts may lead him to push for a decision that at least won’t set an overriding precedent in this area.” The affirmative action cases will be heard on Oct. 31 as justices consider the use of race as a factor in college admissions at Harvard College and the University of North Carolina. (Jackson will not participate in the Harvard case.) Roberts was at odds in 2016 when the court upheld the University of Texas’ race-conscious admissions program. Additionally, in a 2007 Roberts majority case, the court struck down race-based public school assignment programs in Seattle and Louisville. “For schools that have never been racially segregated, like Seattle, or that have removed the vestiges of past segregation, like Jefferson County, the way to achieve a system of determining public school admissions on a non-racial basis is to stop assigning students based on race,” Roberts wrote. “The way to stop discrimination based on race is to stop discrimination based on race.” In 2014, the court upheld a Michigan ballot initiative that banned racial preferences as part of the admissions process for state universities. Justice Sonia Sotomayor wrote a rousing dissent, aptly repeating some of Roberts’ language in the 2007 case. Roberts fired back. “The dissent states that ‘the way to stop discrimination on the basis of race is to talk openly and honestly about the issue of race.’ And urges that “[r]Ace counts because of the slights, the taunts, the silent judgments that reinforce the most crippling thoughts: “I don’t belong here,” Roberts wrote. “But it is not ‘out of the box’ to conclude that racial preferences may have the debilitating effect of reinforcing just this doubt, and—if so—that preferences do more harm than good. the costs and benefits of racial preferences are not to “wish for, but to deal with” racial inequality. of the discussion”.
Voting rights
The court will also consider the scope of Section 2 of the landmark Voting Rights Act, which prohibits regulations that deny or curtail the right to vote based on race. The law has become an important tool to prohibit discrimination in voting.
At issue is a lower court opinion that invalidated Alabama’s congressional charter as potentially violating the law. The lower court ordered another majority black district to be drawn. But in February, a 5-4 Supreme Court decision froze that decision at the state’s request, allowing the current maps for now and agreeing to hear the dispute on that condition.
Roberts sided with liberals in dissent, arguing the majority erred in freezing the lower court’s ruling. “The District Court correctly applied existing law in a lengthy opinion without apparent error for our correction,” Roberts said. Critically, however, Roberts added that while he would not have granted a stay, he believed the court should conduct oral arguments “to resolve the wide range of uncertainties arising from precedent.”
Voting rights advocates are on edge — knowing that in 2013 Roberts wrote an opinion that effectively struck down a separate section of the law that required states with a history of discrimination to get federal approval before changing their election laws.
“Things have changed in the South,” Roberts said at the time.
At the time, Justice Ruth Bader Ginsburg wrote a scathing dissent arguing that the court’s move was akin to “throwing your umbrella into a storm because you don’t get rained on.”
Both the dissents and a series of others will come as the court’s approval rating is at a new low, and some of the opinions of the past term have put the justices at the center of the political debate. In addition, the court is still struggling behind the scenes with an investigation into the leak of the Dobbs draft. Although in public, the justices continue to emphasize the importance of civility, the rulings of the past term showed new pressures.
