What’s been the most difficult decision of Chief Justice John Roberts’ Supreme Court career?
No, it wasn’t, say, his 2013 opinion gutting the Voting Rights Act in Shelby County v. Holder, though that will be an important part of his legacy. According to Roberts’ remarks to a legal group Tuesday, his hardest decision wasn’t a legal one at all but rather — wait for it — putting up a fence.
Really.
Receiving a prize from the American Law Institute, the chief justice told the crowd: “The hardest decision I had to make was whether to erect fences and barricades around the Supreme Court. I had no choice but to go ahead and do it.”
It’s telling that Roberts skipped over the circumstances that led him to make that choice last year. Of course, it was the court’s opinion striking down abortion rights in Dobbs v. Jackson Women’s Health Organization, which was leaked ahead of its issuance in June. Naturally, that sparked protests and even security concerns, which can happen when decades-old rights are struck down by a court stacked with ideologues.
Roberts likewise failed to paint a complete picture when he bemoaned the protests outside of justices’ homes, which were also prompted by his court’s overturning of Roe v. Wade — saying nothing of the fact that protest is constitutionally protected even when it makes powerful people uncomfortable. (Obviously, an assassination attempt, as is alleged to have happened with Justice Brett Kavanaugh, is not a protest, and if you need me to tell you that, there’s no hope for you.) It’s no surprise, then, that Roberts’ remarks on ethics also fell short. Amid the unresolved Clarence Thomas/Harlan Crow scandal, he assured the crowd that his court was committed to the highest ethical standards and was “continuing to look at things we can do to give practical effect to that commitment.” But Roberts, who arrogantly declined to testify to the Senate about the subject, need look no further than the lower courts he lords over. They’re bound by an ethics code, and there’s no good reason his court shouldn’t be as well. To be sure, Roberts was speaking to a legal audience that might be more inclined to lap up the pageantry of a chief justice’s mere presence. But he could be forgiven if the American people don’t feel much sympathy for what he claims was his hardest choice — their choices are much harder, partly because of his court.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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