“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide to the proper decision,” said Roberts, who added, with a laugh, “Yes, all of our opinions are open to criticism. In fact, our members do an excellent job of criticizing certain opinions from time to time. But just because people disagree with an opinion doesn’t mean you should criticize the legitimacy of the tribunal.
With the support of three justices chosen by President Donald Trump over the past five years, the Supreme Court now has a 6-3 conservative majority. Those justices have sent the court on a dramatic swing to the right during the completed term. this summer, nullifying the guarantee of a constitutional right to abortion in Roe vs. Wadestriking a gun control law in New York, limiting the power of the Biden administration to deal with climate change and winning victories for religious conservatives.
The court’s approval rating fell to one of its lowest levels ever recorded in the opinion polls, led by disgruntled Democrats and to a lesser extent by those who consider themselves independents.
But Roberts said it’s the Supreme Court’s job to decide what the law is. “That role doesn’t change just because people disagree with this or that opinion or with a particular mode of jurisprudence,” he said.
Not to mention directly the court’s decision to overturn nearly 50 years of precedent by setting aside deerRoberts acknowledged the difficulty of the past year.
“It was heartbreaking every morning to walk into a Supreme Court surrounded by barricades,” Roberts said. And it was not “natural” to hold oral argument by teleconference or in front of a small number of court personnel and stenographers. The court has been closed to the public since March 2020 due to pandemic concerns.
“When we take the bench on the first Monday in October at 10 a.m., the audience will be there to watch us,” Roberts said. “I think just moving forward with things that were unhappy is the best way to respond to it.”
Roberts was interviewed by two fellow judges at the Bench & Bar conference for the United States Court of Appeals for the 10th Circuit. He was not asked about one of the things that made the term so controversial: a leaked draft of the Supreme Court’s opinion on abortion in Dobbs v. Jackson Women’s Health Organization.
The leak of the draft opinion by Judge Samuel A. Alito Jr. shocked the court, which prides itself on keeping internal deliberations secret. In May, Roberts ordered an investigation into the leak to Politico, but he hasn’t said anything publicly since.
Earlier at the same conference in Colorado Springs, Judge Neil M. Gorsuch said the internal investigation was continuing and he hoped a report would come soon. He did not say whether it would be made public.
“Inappropriate efforts to influence judicial decision-making, from any side, pose a threat to the judicial decision-making process and inhibit our ability to communicate with each other,” Gorsuch said.
The leaked draft at Politico was much the same as the majority opinion that supported the Mississippi law. Gorsuch was among five justices who voted to overturn deer. Roberts said he would have upheld the Mississippi law but not overturned it deerand the three court liberals dissented.
The decision led to protests outside the homes of judges, including Roberts and Judge Brett M. Kavanaugh, who live near each other in suburban Maryland.
Karlik reported from Colorado Springs.