Editor’s Note: Adapted from “NINE BLACK ROBES: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences,” by Joan Biskupic, to be published April 4 by William Morrow.
When the Supreme Court declared a constitutional right to same-sex marriage in 2015, Chief Justice John Roberts revealed extraordinary anger as he read aloud what for him was an unprecedented dissent from the bench.
“Just who do we think we are?” he asked.
Roberts emphasized the ancient understanding of marriage as between a man and woman and argued that any approval of same-sex unions should be left to state legislatures. It remains the only time in his 18 years as chief justice that he has taken the dramatic step of going beyond the words of his written opinion and orally dissenting.
Just two years later, however, Roberts was motivated to work privately with Justice Anthony Kennedy, the author of the Obergefell v. Hodges landmark ruling, to steer the court’s outcome in a pair of key gay rights disputes. The negotiations in those cases, not previously reported, offer a glimpse into trade-offs among justices, demonstrate the chief’s soft power of persuasion and show that the court’s sentiment on gay rights issues can be both fraught and evolving.
The justices abhor any suggestion of dealmaking, whether overt or implicit, but closed-door pacts occur, and Roberts has been at the center of them for years. In many instances, law clerks know about a deal struck between justices. But in others, only the two justices involved truly know. Sometimes various chambers have dueling accounts of what happened, or individual justices remain baffled about why a colleague voted the way he or she did in the end.
Here, Roberts would join Kennedy in favor of LGBTQ interests in ruling that Arkansas could not…
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