Let’s assume for a second that the head of the Supreme Court cares about his historical reputation. Clarence Thomas and Sonia Sotomayor don’t have that sort of pressure. They just vote their conscience and sleep like babies but eras in the court are described by using the chief justice’s name. Each one becomes most famous for it’s most significant decisions and the historical judgment falls most heavily on the chief – as if his name is on the stamp, even if he voted against the rest of his colleagues.
A minister (Theodore Parker) in the 19th century once said:” The arc of the (moral) universe … bends towards justice.” – which I think means that the world gradually becomes a more liberal place where human rights gain favor and religious orthodoxy declines. If you were a justice on the court that voted in favor of returning runaway or freed slaves to the Confederacy (The Dread Scott case) then history has judged you harshly. If you voted against civil rights or voting rights or access for all to education then history has raked you over the coals. In fact, it’s rather hard to think of a conservative decision that has been judged as wise and good for the country.
You might point at the court’s shutting down the New Deal as a Presidential overreach: The Supreme Court consistently rejected laws giving the federal government authority to regulate industrial or agricultural production—FDR’s efforts to protect workers, raise employment, and lift farm incomes. FDR had won huge majorities in 1932 and ’34 and the people were all behind the New Deal programs. If FDR hadn’t tried to stack the court in retaliation this would have gone down as just another decision(s) by the court to favor big business, the donor class or retrograde ethical positions. Desperate times demanded desperate measures.
The Supreme Court has upheld segregation, supported the internment of Japanese Americans, found in favor of forced sterilization of people with disabilities, upheld sodomy statutes, told states they cannot ban child labor, stopped the recounting of votes in Florida in 2000, protected Exxon from punitive damages in the crash of the Valdez, and of course – found that corporations deserve the same protections as people when it comes to political (free) speech. If we just singled out the voting record of the conservative justices we would be appalled by their votes. Conservatives, in particular, are often the most behind the times when it comes to individual freedoms and equal rights.
The United States is becoming unequivocally more secular and more open-minded towards minorities and LGBT people. This is not new – this the arc of history and if the Roberts court chooses to go crazy conservative with Gorsuch, Thomas and now Kavanaugh leading the way, they’ll find that history will judge them as backward dupes of the aged and the rich. Is that how Roberts wants to be known? Is he willing to hear it said that “the Roberts Court blew up the right to an abortion”? Is he happy that his court has chosen to empower corporations to the detriment of citizens and that it has done nothing to fix the national gerrymandering crisis? After Kavanaugh gets approved, we must hope that Roberts has some historical perspective and takes on the job of the adult in the room.
It’s his reputation at stake.