Last year at this time, the American public waited anxiously to see if Brett Kavanaugh would be become the newest U.S. Supreme Court justice. Supporters and detractors alike assumed that President Trump's newest pick would reshape the ideological composition of the court. With the addition of a new conservative justice, I opined that Justice Roberts' bona fides as the court's "new centrist" would be tested, not just in the marquis hot button issue cases such as abortion, LGBT rights, affirmative action, and immigration, but in the way the court handles the less flashy but still important procedural issues that many of the cases present.

Justice Roberts is known for caring deeply about the institutional integrity of the Supreme Court, and many centrists and progressives pinned their hopes for ideological balance on Roberts' apparent desire to preserve the court's image as an apolitical institution. But paradoxically, explicit calls for the court to consider institutional integrity are themselves contributing to the increased politicization of the court. Indeed, a few cases from last term show that appealing to Justice Roberts' sense of institutional integrity can be effective. But as we approach the court's October Term, more recent events show that the "institutional integrity" card can be weaponized.

Litigants and interested parties have good reason to believe that strategies that emphasize judicial integrity and impartiality may be persuasive. Sometimes Justice Roberts speaks directly about the importance of an apolitical judiciary, such as when he rebuked President Trump for complaining about a decision by an "Obama judge." Other decisions show his ability to use procedural tools to delay or avoid politically sensitive decisions, such as his opinion in the census citizenship question case, in which he wrote that a citizenship question itself is not unconstitutional, but that the Commerce Department had provided only pretextual reasons for its inclusion, or his decision to join with the court's four liberal justices in granting a stay of the enforcement of a Louisiana anti-abortion law while the parties petitioned the court for certiorari.

It should be no surprise, then, that some parties and other groups have begun to make explicit institutional integrity arguments to the court. Consider the recent partisan spat between Senate Democrats and Republicans surrounding an upcoming Second Amendment case pending before the Supreme Court. The case concerns a restriction that New York City passed on transporting licensed handguns outside of the home. Gun rights advocates challenged the restriction in federal court and lost in the district court and before the Second Circuit. Nevertheless, when the Supreme Court granted certiorari to hear the challenge to this case, New York City officials changed the regulation to permit the challenged activity. They then moved to dismiss the Supreme Court petition as moot.

Here's where things really started to get political. In mid-August, a group of Democratic U.S. Senators filed an amicus brief arguing in favor of the mootness dismissal. Their brief made a direct connection between mootness—a superficially arcane and apolitical legal doctrine—and the institutional integrity of the Supreme Court. They argued that a decision to hear the case, despite the fact that the petitioners were no longer aggrieved by an existing regulation, would reveal a political bias toward an aggressively conservative interpretation of the Second Amendment. Senate Republicans recently issued a strong rebuke to this filing, accusing the Democrats of playing politics. Although the Republicans did not take a formal stance on the issue of mootness, they strongly intimated that ruling in New York City's favor on the mootness issue would be a capitulation to the Democrats' political interests and "capture" of the Supreme Court, claiming that the Democrats had "openly threatened the Court with political retribution."

Perhaps this is the inevitable endpoint of the obsession with institutional integrity. When the perceived defining feature of a "swing vote" or "centrist judge" is a commitment to the institution and its attendant procedures, it is only a matter of time before institutional integrity itself is politicized. While it is certainly nothing new to see academics tussle over these questions, or to see these issues discussed as explanatory commentary on the court's cases and decisions, Justice Roberts may find that by centering the importance of an image of judicial independence, he has only encouraged the politicization of that very issue.

It is tough to predict what Justice Roberts will do this term with regards to issues of institutional integrity. But it's safe to say that litigants and commentators will only increase vocal and direct appeals about how each case or issue will affect the court as an institution. In the end, this might not be a terrible outcome. If the court is, in fact, grounding some aspects of its decision-making and reasoning in concerns about institutional integrity, litigants and the public at large should have the opportunity to participate in that dialogue. It will be up to Justice Roberts to ensure that such debates are an enhancement rather than a distraction, and that the issue of institutional integrity does not take on such a life of its own that it swallows the merits' questions whole.

Robin J. Effron is professor of law at Brooklyn Law School where she serves as co-director for the Dennis J. Block Center for the Study of International Business Law. She teaches civil procedure, litigation, and international business law courses. She also edits the Civil Procedure and Federal Courts Blog for the Law Professors Blog Network.