Conservatives have long had a clarion call when it comes to Supreme Court appointments: NO MORE SOUTERS. This refers to the nomination and confirmation of Justice David Souter by President George H.W. Bush in 1990 to replace the liberal stalwart of the court, Justice William Brennan.
Souter was not a known quantity when nominated. He had served seven years on the Supreme Court of New Hampshire and very briefly (4 months or so) as a federal court of appeals judge. He was brought to the attention of Bush (41) by his chief of staff, John Sununu, who had been tipped by Republican New Hampshire Senator Warren Rudman that Souter was “their kind of guy.” Souter was nominated and confirmed easily, and, after a few years (probably around 3-4) emerged as one of the reliably liberal voices on the court both in terms of governmental powers as well as issues of social justice and equal protection. According to Rudman (who was socially moderate to progressive), this was exactly what he had hoped would happen and Sununu (and vicariously Bush 41) had been properly conned. As such, conservatives vowed that never, ever, ever, would they let another “Souter” onto the Supreme Court when a Republican controlled the presidency.
Enter Chief Justice Roberts. Roberts is the accidental Chief Justice. President George W. Bush nominated him to replace associate Justice Sandra Day O’Connor, but before he could be confirmed in 2005, Chief Justice William Rehnquist died, so Bush 43 simply nominated Roberts for the Chief Justice post. He has been on the court 15 years now, and for most of that time has been reliably on the conservative wing participating in the majority of some pretty horrific 5-4 decisions (Heller (individual right to bear arms) Hobby Lobby (corporations have religions), andShelby County (the gutting of the Voting Rights Act) come to mind). He was also on the conservative dissenting end on all of the gay rights cases that came before the Court which resulted in victories for the LGBTQ+ side only thanks to Justice Anthony Kennedy routinely voting with the liberal bloc on these decisions.
However, I believe I have detected a shift in the last 4 years which, non-coincidentally, tracks the arrival of Trump on the scene. Very much aware of his legacy, and the Court’s reputation as being a supposed non-partisan guardian of the law, in three very high profile cases (and actually quite a few other less prominent cases), Roberts has now sided with the liberal wing of the Court to save three mainstays of liberal legislation (or executive orders). The Affordable Care Act, Title VII of the Civil Rights Act (applying it to all of the LGBTQ+ population), and, now, DACA.
Now, I am not saying that Chief Justice Roberts has morphed into Justice Souter. That would take becoming a reliably liberal vote—something I do not believe Chief Justice Roberts will ever be. But his shift is noticeable and palpable, and comes out roaring when it matters the most. I hope that this continues.
