Civil and Human Rights

Dear John Letters

A taxonomy of gay marriage arguments aimed at Chief Justice John Roberts.


By Dahlia Lithwick


Chief Justice John Roberts is a busy guy. The 60-year-old has two kids at home and surprise calls for jury duty to contend with; he must serve as chief justice of the entire United States of America; and then he has 147 amicus briefs to read for Tuesday’s argument in Obergefell v. Hodges, the marriage equality cases now before the Supreme Court.


To boot, he is probably a little curious about what the media is saying about him as he prepares to hear arguments and think through his position on gay marriage. For a case that was originally styled as Justice Anthony Kennedy’s constitutional Super Bowl, there is a brisk side business in chief-based journalism this season. To the extent that the justices (a) read the newspapers and (b) care what the newspapers say, it’s reasonable to believe that opinion writers are trying to nudge Roberts along, perhaps emboldened by reports that pundit-bullying contributed to his last-minute vote switch in the 2012 Obamacare appeal.


While political pundit-lobbying from the left is often met by equal and opposite pundit-bullying from the right, as well as by the growing meta-phenomenon of pundit-lobbying-against-pundit-bullying, it’s fairly clear that there have been a good many “Dear John” letters penned in support of gay marriage.


In case the chief is interested in a pundit-taxonomy of pundit-lobbying around the same-sex marriage issue (meta! On skates!), here is a brief summary of the arguments being made to sway him.


No. 1: “Dear John, don’t be on the wrong side of history.”


Google search “marriage” and “John Roberts” and “wrong side of history.” I’ll wait. This is a genre of lobbying that wants the chief to know that someday his grandkids are going to be Very Embarrassed if he votes against something that has so clearly come to represent dignity and justice for LGBT families. Or as Judith E. Schaeffer of the Constitutional Accountability Center warned on CNN this weekend: “If the Windsor majority votes in favor of marriage equality, the ruling will be one of the most momentous decisions of the Roberts court. … Will John Roberts want to be remembered as having dissented from such a historic decision?” Linda Hirshman put it bluntly in Politico: “Therein lies the dilemma for Chief Justice John G. Roberts Jr. as he presides over what may be his most consequential term. The court under Roberts may be perceived as leaning to the right, but the decisions that most resonate throughout history and leave their mark on the constitutional fabric of the country almost invariably veer left. In the few months between now and the end of June, the actions the justices take could either cement Roberts’ legacy or lead to its unraveling.”


No. 2: “Dear John, it’s better for America if you vote with the liberals.”


One way to avoid the taint of a 5–4 court split along ideological lines is to take control of the case.

Here the argument is that if Roberts wants the 17 states that still ban gay marriage to comply with what looks to be an inevitable 5–4 decision striking down those bans, he can lend his imprimatur of authority and gravitas to that decision by making it 6–3. As Bloomberg’s Greg Stohr put it this weekend, “Roberts would be the sixth vote, unnecessary to secure the victory but valued for its symbolic significance. His support would ‘add to the emerging sense that same-sex marriage is not a partisan issue,’ said Michael Dorf, a constitutional law professor at Cornell Law School who filed a brief backing marriage rights. ‘That would help in getting the decision complied with in the parts of the country where public opinion is against same-sex marriage.’ ”


There is a subgenre of this category, which plays to Roberts’ concern that the court that bears his name not look partisan. Roberts has expressed great apprehension over this very issue. Reporters observe that one way to avoid the taint of a 5–4 court split along ideological lines is to take control of the case. Or as Joan Biskupic describes it: “He has demonstrated apprehension about the reputation of the court that, by virtue of his service as chief justice, informally bears his name. In his opinions, he has sometimes tried to lower tensions in controversial cases and reassure people that the court is aligning with precedent and public expectations.”


No. 3: “Dear John, don’t let Tony Kennedy steal your legacy.”


This is the argument of court watchers who say that Roberts is in peril of seeing his court morph into the Kennedy Court. Why should the guy who most often wields the deciding vote get all the glory? Eric Segall put it this way in the Daily Beast earlier this month, describing Roberts’ vote on the Affordable Care Act: “The conventional wisdom is that [Roberts] voted to uphold the law to preserve the legacy of the institution, not wanting the court to strike down the president’s signature law by a 5-4 partisan vote just a few months before the election. Maybe, but it is also possible his personal legacy and future control of the Court was just as much on his mind. It also matters because the battle for control of this court between Roberts and Kennedy makes it extremely unlikely the chief will allow Justice Kennedy to write both the same-sex marriage and Affordable Care Act decisions the court will hand down in June of this year.”


No. 4: “Dear John, vote for marriage equality and you can strike down Obamacare.”


This argument is that people would be so happy about a win for marriage that they would give the chief justice a pass if he voted with the conservatives in King v. Burwell, which could take away federal subsidies for Obamacare. As Emily Bazelon summarized the argument in the New York Times Magazine this winter: “Four conservative justices have already made their opposition to Obamacare clear. Last time, Roberts didn’t join them. If the five conservatives now agree that the law is defective, their decision could not possibly escape notice. It would be thunderous. But it would also probably share the attention with the joyous wedding of April DeBoer and Jayne Rowse. One for the right, one for the left. And the chief justice wins.”


No. 5: “Dear John, vote with the liberals and write a narrow opinion.”


Amicus: The Politics of Law


In anticipation of big decisions on marriage equality and Obamacare, many are talking about the balance of political power on the Supreme Court. Is that fair?

The idea here is that if Roberts wants to minimize the sweep of the decision, he could take it away from Anthony Kennedy, assign it to himself, and write something very narrow that will mollify both sides. As Michelangelo Signorile put it at the Huffington Post earlier this year, the best hope for marriage-equality opponents may be that “precisely because no one knows on what basis Kennedy would decide, Roberts could step in to make sure it’s clear and narrow.” Or as Douglas Laycock, a University of Virginia law professor, explained to Bloomberg: “It is conceivable that he could provide the sixth vote for institutional reasons having to do with the court’s legitimacy and making the decision appear more legal and less political. … I do not think that is very likely, but it wouldn’t be astonishing.”


Of course there is one last genre of advice the chief is getting: The argument that he shouldn’t let the bullies bully him. Or as Ed Whelan, president of the Ethics and Public Policy Center, a group that is opposed to same-sex marriage put it to CNN: “The chief surely knows that his job is to be on the right side of the Constitution. … [B]latherings about the ‘wrong side of history’ are an appeal to intellectual cowardice.”


I would caution the chief justice against letting the anti-lobbying lobbies bully him. But that smacks of lobbying. Or bullying. He’ll sort it out himself, I suspect. He usually does.


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