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In FiveThirtyEight's wrapup of their Kavanaugh hearing coverage, one writer said (emphasis mine):

Second, in this difficult and circular path, the fundamental process of confirmation to the Supreme Court may now be forever changed. With a high-leverage midterm election on the horizon, and a sitting chief justice who values the legitimacy of the court above all, I’m not exactly sure where that leaves us.

There were also one or two other comments during their live blog on similar lines. This confuses me, however, since as far as I know the chief justice is stuck with whoever the Senate confirms, so his (or her) opinion on the nominee and what they may do to the makeup or perceived legitimacy of the court is irrelevant.

Is there any "soft power" the chief justice has to influence either the nomination process or to reign in the tendencies of a new associate justice they disapprove of? Is there some constitutional option I forgot or law I'm not aware of that gives them a way to self-regulate the court (similar to how either house of Congress can vote to expel any member)?

  • I think the CJOTUS gets to decide who writes the opinion, at least when the CJOTUS is in the majority. So one think he could do would be to shut someone out of writing the official opinions. – user15103 Sep 28 '18 at 17:09
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There is no provision that gives the Chief Justice of the United States any power of the appointment of judges to the supreme court or any court. Their is considerable soft power in being a justice that could be used to voice opinions of a potential nominee, but exercising this power would be a huge taboo. Traditionally the court remains silent on all things until actions have been taken and only rules on the results, they have intentionally removed themselves from any debate since the first supreme court. The Chief Justice can limit to a degree the exposure another justice gets, by not allowing them to write decisions or limiting their time in oral arguments, but these would be fairly petty measures that would do far more damage to the legitimacy of the court.

What may be meant by Robert's value of legitimacy is that he will make surprise rulings that run counter to expected partisan lines. This is commonly cited as his reasoning for his vote to uphold Obamacare, though any truth of this will likely never be known. This statement could be a subtle way to note that a confirmation of Kavanaugh will not suddenly turn the court into a partisan machine cranking out conservative/Republican rulings. Roberts is not willing to sacrifice the legacy of the court or his rule over it to devolve into the extreme partisanship seen today.

  • This is pretty much exactly what I expected. Thanks. – Bobson Sep 28 '18 at 14:27
  • I’ll accept in a day or two just in case someone else wants to chime in – Bobson Sep 28 '18 at 14:28
  • I have seen various pundits claiming that Roberts would forcibly move himself to the left on several issues because they believe he does not want to be the Chief Justice that presides over the overturning of things like Roe v. Wade. But this is all guesswork, and sort of underplays the "slow death and whittling away" strategy that's already being used. So while Roberts may (or may not) actively prevent serious changes in precedents, that may just means he keeps the court on the whittling away strategy. – zibadawa timmy Sep 28 '18 at 18:37
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    @FrankCedeno There are already states that have passed restrictive bills to limit abortions which have been challenged in court. Some have been struck down, some not. Do you really think a court that wanted to overturn Roe wouldn’t pick up the appeal to one of those challenges? – Bobson Oct 3 '18 at 11:51
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    @FrankCedeno - I don't think anyone is saying that overturning Roe would automatically make abortions illegal. But overturning it makes it possible to make them illegal, which many Republican-controlled states will then proceed to do (or so the argument goes). – Bobson Oct 3 '18 at 14:28

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