WASHINGTON — In his first 13 years on the Supreme Court, Chief Justice John G. Roberts Jr.’s main challenge was trying to assemble five votes to move the court to the right, though there were only four reliably conservative justices.
Now he faces a very different problem. With the retirement of Justice Anthony M. Kennedy and his replacement by Justice Brett M. Kavanaugh, the chief justice has the votes he needs on issues like abortion, racial discrimination, religion and voting. At the same time, he has taken Justice Kennedy’s place as the swing vote at the court’s ideological center, making him the most powerful chief justice in 80 years.
But all of that new power comes at a dangerous time for the court, whose legitimacy depends on the public perception that it is not a partisan institution. “We don’t work as Democrats or Republicans,” Chief Justice Roberts said in 2016, and he reiterated that position in an extraordinary rebuke of President Trump last month.
He seemed to underscore that point again on Friday, joining the court’s four-member liberal wing, all appointed by Democratic presidents, to reject a request from the Trump administration in a case that could upend decades of asylum policy. This month, he drew sharp criticism from three conservative colleagues for voting to deny review in two cases on efforts to stop payments to Planned Parenthood.
The Trump administration has tested the chief justice with a series of applications and petitions asking the court to ignore its ordinary procedures in cases on issues like the census and climate change. After what has often appeared to be intense behind-the-scenes negotiations, Chief Justice Roberts has so far assembled coalitions that mostly denied the requests, often over the dissents of two or three of his most conservative colleagues.
The court’s newest member, Justice Kavanaugh, did not note a dissent in any of those cases, suggesting that he was following Chief Justice Roberts’s lead. That changed on Friday in the asylum case, casting the new dynamic at the court into sharp relief.
Controlling the pace of change on a court whose conservative wing is eager to move fast will be the central problem of the next phase of Chief Justice Roberts’s tenure, said Daniel Epps, a law professor at Washington University in St. Louis.
“If he’s smart, and he is, what he’s probably thinking is, ‘I do have a substantive agenda of things I want to accomplish. But it’s a lot easier to do that when the court retains its legitimacy. Let’s do as much as we can get away with, but maybe that’s a little less than some of my colleagues to my right think we can get away with,’” Professor Epps said.
Leading the court through an ideological minefield at a time of intense political partisanship will tax the leadership of Chief Justice Roberts, who has earned the respect if not affection of his colleagues during his time as the court’s leader. He is a skilled administrator with a light wit and exceptional legal skills. But some justices say they miss the “old chief” — Chief Justice William H. Rehnquist, his predecessor, who had a knack for not taking himself too seriously.
Chief Justice Roberts is more apt to consider his place in history and has spoken about spending quiet nights at the court contemplating the portraits of his 16 predecessors.
“They’re probably looking down at me with either bemusement or amazement,” Chief Justice Roberts told C-Span in 2010. “From time to time, I find it a useful reminder of the role of the court and the role of the chief justice.”
He has spoken admiringly of Chief Justice Charles Evans Hughes and his deft management of a clash with President Franklin D. Roosevelt. It arose in 1937, when Roosevelt, unhappy with Supreme Court decisions striking down his New Deal programs, announced a plan to add justices to the court.
“One of the greatest crises facing the Supreme Court since Marbury v. Madison was F.D.R.’s court-packing plan,” Chief Justice Roberts said in 2015 at New York University, “and it fell to Hughes to guide a very unpopular Supreme Court through that high-noon showdown against America’s most popular president since George Washington.”
“There are things to learn from it,” he said, and he has seemed to apply those lessons to a series of clashes with Mr. Trump, who has attacked the very idea of judicial independence.
The president seems determined, moreover, to confront and antagonize Chief Justice Roberts, a surprising tactic in light of the chief justice’s conservative roots and respect for executive authority.
In response, Chief Justice Roberts has become increasingly more assertive.
A week after Justice Kavanaugh took his seat on the court, Chief Justice Roberts made rare public comments on “the contentious events in Washington of recent weeks,” referring to his new colleague’s brutal confirmation hearings, and then last month publicly tangled with Mr. Trump.
After the president responded to an administration loss in a lower court by criticizing the judge who issued it, calling him an “Obama judge,” Chief Justice Roberts issued a sharp public statement. He insisted, against the weight of substantial evidence, that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
Political science data refute that assertion, as do the fights over judicial confirmations. Indeed, the most recent battle, over Justice Kavanaugh, damaged the court’s reputation precisely because the court was portrayed as a political prize.
Chief Justice Roberts is too smart and too steeped in history to believe that politics plays no role in judicial decision making. But he must view the idea that judging is wholly separate from politics as a useful fiction, a worthy aspiration and, most important, crucial to the court’s standing.
He certainly returns to the theme often.
“We do not sit on opposite sides of an aisle,” he said of his colleagues in a speech at the University of Minnesota in October. “We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation.”
The court’s other four Republican appointees — Justices Kavanaugh, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — sent a different message not long after, all attending the annual gala dinner of the Federalist Society, the conservative legal group.
Chief Justice Roberts avoids such events, though he did send along congratulations by video for the group’s 25th anniversary in 2007. Liberal justices have occasionally addressed the annual convention of the American Constitution Society, a liberal group, but court watchers could not recall a show of force like the one by their conservative colleagues in 2018.
Enthusiasm among conservatives for the chief justice has tempered since President George W. Bush nominated him in 2005. They point to his two votes to uphold President Barack Obama’s health care law and a leftward drift documented by political scientists.
In the term that ended in June, for instance, Chief Justice Roberts’s voting record was almost indistinguishable from that of Justice Kennedy.
There is no question, however, that Chief Justice Roberts’s voting record has been generally conservative. On issues of racial discrimination, religion, voting and campaign finance, his views are squarely in the mainstream of conservative legal thinking.
He voted with five-justice majorities in District of Columbia v. Heller, the 2008 Second Amendment decision that established an individual right to own guns; Citizens United, the 2010 campaign finance decision that amplified the role of money in politics; and Shelby County v. Holder, the 2013 voting rights decision that effectively gutted the Voting Rights Act.
And he seethed when Mr. Obama attacked the Citizens United ruling at his 2010 State of the Union address, with several justices in attendance. A couple of months later, he said the event had been “a political pep rally.”
“I’m not sure why we are there,” he said. “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according to the requirements of protocol, has to sit there expressionless, I think, is very troubling.”
But by casting the decisive vote to save Mr. Obama’s signature legislative achievement, the Affordable Care Act, he transformed his reputation. Liberals hailed him as a statesman. Conservatives denounced him as a traitor.
Mr. Trump, years before he ran for president, was in the second group. “I guess @JusticeRoberts wanted to be a part of Georgetown society more than anyone knew,” he wrote on Twitter, citing a fake Twitter handle. During his presidential campaign, Mr. Trump called Chief Justice Roberts “an absolute disaster.”
It is not as if the Roberts court has not handed the president some victories. In June, Mr. Trump won the biggest case of his presidency so far, when Chief Justice Roberts wrote the majority opinion sustaining the administration’s order limiting travel from several predominantly Muslim countries.
But other administration initiatives will soon reach the court, and Chief Justice Roberts’s legacy will be shaped by how he addresses them.
He is only 63, but he has already led the Supreme Court for more than a dozen years. His last three predecessors had tenures of between 16 and 19 years, but Chief Justice Roberts is likely to stay in office much longer and to leave a correspondingly larger mark. But he has shown that he is prepared to be patient.
Sara C. Benesh, a political scientist at the University of Wisconsin-Milwaukee, said Chief Justice Roberts has generally tried to move the law in small steps.
“Moderation, not just in terms of ideological moderation but also humility, is kind of his thing,” she said. “He seems to write limited opinions. He doesn’t reach any further than he has to. He clearly distinguishes between what he is doing as a judge and what he might believe in terms of policy.”
The court will have to soon decide whether to hear two sets of cases concerning Trump administration initiatives to revoke protections for unauthorized immigrants brought to the United States as children and to bar transgender people from military service.
If the justices decide to hear one or both of the cases, what has so far been a sleepy term would become much more significant. While Chief Justice Roberts may be inclined to avoid politically charged issues and quietly rebuild his court’s authority, it takes only four votes to add a case to its docket.
Even if he wants to avoid major controversies for now, his more conservative colleagues may not let him.