I have written this piece for Slate. It begins:
Back in November, when President Donald Trump referred to a judge who had ruled against his administration as “an Obama judge,” Chief Justice John Roberts issued a rare rebuke in a public statement. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts intoned. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” The remark echoed Roberts’ insistence during his 2005 confirmation hearings that judges are like umpires who merely call balls and strikes.
But the partisan gerrymandering cases the Supreme Court will hear on Tuesday and the caseabout a controversial citizenship question on the 2020 U.S. census that the court will hear next month will once again put Roberts’ stated principle to the test. This time, following the departure of swing Justice Anthony Kennedy, Roberts could well be the only one in a position to stop a pattern in which all the Republican-appointed judges side with perceived Republican interests and all the Democratic-appointed judges side with perceived Democratic interests. The question in these cases will be which of the two enigmatic versions of Roberts described in Joan Biskupic’s magnificent new book, The Chief, will show up: the solid conservative who wrote the opinion to kill a key provision of the Voting Rights Act and voted with four other conservatives to allow corporate money into candidate elections, or the institutionalist chief justice who is desperate to show that there remains a distinction between law and politics. Given the blockbuster cases expected in the next Supreme Court term beginning in October, there’s going to be real pressure for the institutionalist John Roberts to be dominant in this term’s political cases.