US chief justice to swear in another president who opposed him

Joe Biden and Barack Obama voted against John Roberts’ confirmation to the US Supreme Court and Donald Trump has been highly critical of him.

Chief Justice of the United States John Roberts
Chief Justice of the United States John Roberts

Joe Biden will take the oath of office at his inauguration as president of the United States from a Supreme Court chief justice he voted against.

It will be the fourth time that John Roberts will stand across from a man who either voted against his confirmation to the Supreme Court or has made no secret of his unflattering views of the chief justice.

Mr Biden was one of 22 senators who voted against Mr Roberts in 2005. Another was former president Barack Obama, who twice took the oath from Mr Roberts.

Chief Justice John Roberts, right, reads the oath of office to President Barack Obama
Chief Justice John Roberts, right, reads the oath of office to Barack Obama (AP/Paul Sancya, File)

President Donald Trump castigated the chief justice as a “disgrace” for his role in upholding Mr Obama’s healthcare overhaul. Mr Roberts presided over Mr Trump’s first impeachment trial last year and could preside over his second as well.

Mr Roberts is far from the only justice whose confirmation Mr Biden and vice president-elect Kamala Harris opposed. Mr Biden, who was a senator from Delaware for more than 35 years, also voted not to confirm Justices Clarence Thomas and Samuel Alito. Ms Harris, a California senator, cast votes against the nominations of Mr Trump’s three appointees to the high court: Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

It is the first time in American history that the incoming president and vice president have together voted against a majority of the court.

The unusual milestone reflects that both halves of the Democratic ticket served in the Senate at a time of increasing political polarisation that found full expression in Supreme Court nomination fights.

“It’s more partisan, more polarised, more contentious than at any time since” after the American civil war, said Richard Friedman, an expert on Supreme Court history at the University of Michigan law school.

But Mr Friedman and others dismissed the idea that bruised feelings would play any role in how justices decide cases.

Mr Friedman said: “It’s a remarkable thing what life tenure does. It can diminish the force of any kinds of grudge. You don’t need to get back at anybody.”

Donald Trump takes the oath of office from chief justice John Roberts
Donald Trump takes the oath of office from chief justice John Roberts (Jim Bourg/Pool Photo via AP, File)

Deanne Maynard, an appellate lawyer who served as a Supreme Court clerk in the 1990s and also worked in the Justice Department, said it would be a mistake to think justices allow personal feelings to influence decisions.

“The court likes to think of itself as approaching, and does try to approach, every case on its facts and on its own law. I can’t imagine the justices are thinking back to the tally in their confirmation hearings when they decide any given case,” Ms Maynard said.

Mr Roberts’ record on issues that were important to Mr Obama and Mr Trump offers support to the idea that deciding cases isn’t personal. He cast the decisive vote and wrote the opinion that upheld Mr Obama’s healthcare law in 2012. He also upheld Mr Trump’s ban on travel from several mostly Muslim countries in 2018, then ruled against Mr Trump on other immigration-related cases, including the administration’s failed effort to add a citizenship question to the 2020 census and wind down protections for about 650,000 immigrants brought to the country illegally as children.

Mr Biden and Ms Harris are also taking office at a time when the court is more conservative than it has been since the early days of the New Deal and Franklin Delano Roosevelt’s administration.

If the administration runs into trouble at the Supreme Court, it is likely to be over a clash of ideologies.

The court’s conservatives “are not going to necessarily like big pieces of legislation,” said University of South Carolina political scientist Jessica Schoenherr. When Mr Roberts joined the liberal justices in the 2012 “Obamacare” case, four conservative justices were prepared to strike down the law in its entirety.

Kamala Harris and Joe Biden
Kamala Harris and Joe Biden are coming to power at a time when the Supreme Court has a strong conservative majority (AP/Matt Slocum)

Efforts by the new administration to reverse Mr Trump’s positions on some issues could also meet resistance on the court, Ms Maynard said.

“To the extent it is a situation where the Biden administration might take a different view, then I think that’s where the composition of the court might matter,” she said.

Presidents do not always see eye to eye even with the justices they put on the court. In addition, preserving the court’s independence is practically an obsession of Mr Roberts’, Mr Friedman said.

He said: “All justices are very conscious of their role. They may not always be totally dispassionate, but it’s not as if they go in saying, ‘I like this president, let me do him a favour’.”

Mr Trump has criticised his three appointees for failing to take his side in election challenges.

President Theodore Roosevelt was enraged when Justice Oliver Wendell Holmes voted against the president in a major antitrust case. Mr Roosevelt said of Mr Holmes: “Out of a banana I could carve a firmer backbone.”

President Dwight Eisenhower also soon regretted his choice of chief justice Earl Warren, referring to the man who led the court during its liberal era as “the biggest damned-fool mistake I ever made”.

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