Fear And Loathing At The Supreme Court — What Is Chief Justice John Roberts Up To?

Jul 8, 2019
Originally published on July 8, 2019 12:30 pm

What was he thinking? That is the question many are asking on both sides of the political spectrum.

Chief Justice John Roberts repeatedly voted with the Supreme Court's conservatives this term, except in one, and only one, 5-4 decision. Written by Roberts, the ruling blocked the addition of a citizenship question on the 2020 census, leaving an angry President Trump desperately trying to find a way around it.

It also left a lot of speculation about the motives of the chief justice.

He often does appear like he's very focused on his legacy and on being popular rather than on doing what a judge should do. - Curt Levey, the conservative Committee for Justice

For some conservatives, Roberts' vote in the census case was another original sin, much like his vote in 2012 to uphold key provisions of Obamacare. The chairman of the American Conservative Union has even called for Roberts' impeachment.

"I'm for impeaching the Chief Justice for lying to all of us about his support of the Constitution," tweeted ACU Chairman Matt Schlapp. "He's responsible for Robertscare and now he is angling for vast numbers of illegal residents to help Dems hold Congress."

Curt Levey, president of the conservative Committee for Justice, doesn't go that far, but he said the census decision means that "having a conservative majority on the court is still a dream rather than a reality."

Yet even Levey concedes that Roberts has been a reliable conservative vote on the court. Indeed, Roberts racked up an 80% rate of agreement with the court's other conservatives in all opinions, the same percentage as the court's most conservative justice, Clarence Thomas.

As for liberal, and moderate, advocates and activists, they were not exactly out there speaking about the chief justice in glowing terms. While relieved that the census looked — for now — immune to political machinations, they were infuriated by another, and perhaps even more important, Roberts opinion.

Traitor or agenda-driven conservative?

Writing for himself and the court's four other conservatives, the chief justice slammed the door shut on court challenges to extreme partisan gerrymanders. The decision will allow many state legislatures unfettered discretion to draw congressional and state legislative district lines so as to entrench their own political power.

Because Republicans now control state legislatures in 30 states, versus 18 controlled by Democrats, the decision is a boon to GOP power. (There are 22 states completely controlled by Republicans, and 14 where Democrats have total control).

It isn't just liberals who have pushed for some court supervision of extreme partisan gerrymandering in an era of computer-driven hyper-partisanship.

"There's no doubt there's an agenda here," said Harvard Law professor Charles Fried, who served for four years in the Reagan administration as solicitor general, the government's chief advocate in the Supreme Court.

He and other Republican former officeholders filed a brief on behalf of those challenging extreme partisan gerrymanders. Alluding to Roberts' famous confirmation hearing comment that the job of a judge is not to bat for one side but to "call balls and strikes," Fried observes caustically, "This is not balls and strikes. This is a long term, shrewdly played, but persistent program."

The agenda "is to get the law, whether it's the courts, or the Constitution, or the legislators" out of regulating "anything to do with elections."

Fried catalogs Roberts' decisions in this regard. He wrote the court's 5-4 decision striking down the Voting Rights Act, a law passed and reenacted repeatedly by large and bipartisan congressional majorities. He wrote or participated in a series of decisions striking down longstanding, as well as newer, limits on campaign contributions, also enacted by Congress, and aimed at limiting the role of big money in politics.

And when the court, by a 5-4 vote, upheld independent redistricting commissions established by voter referenda, Roberts wrote the dissent. The decisive fifth vote in that case was Justice Anthony Kennedy, now retired, and Fried worries that the 2015 decision is now in peril, even though Roberts, in the gerrymandering decision, pointed to the commissions as "one way" to take redistricting out of the hands incumbents.

While Fried and others fret about what they see as Roberts' deviousness, Roberts' conservative critics are not the least bit appeased. They view him as something of a traitor, mainly for the Obamacare and census decisions.

Levey, of the Committee for Justice, sees Roberts as a man more concerned with his image than the law.

"He often does appear like he's very focused on his legacy and on being popular rather than on doing what a judge should do," Levey said, adding that "all the pressure from the mainstream media and the establishment is to move left."

Motivated by a "Solomonic dogma"?

Others, like Josh Blackman, a constitutional law professor at South Texas College of Law Houston, have a different view. Though Roberts has been dubbed "the new swing justice," in the wake of Kennedy's retirement last year, Blackman thinks that is a misnomer.

He sees Kennedy and retired Justice Sandra Day O'Connor as "actually somewhere in the middle," whereas "Roberts is a solid conservative, but for whatever reason, in certain high-profile cases, he takes these very bizarre paths that no one else in the court goes along with."

It is true that nobody on the court went along with all of Roberts' reasoning in either the census case or the the Obamacare case.

"I think Roberts is motivated by some sort of Solomonic dogma, that in any given case of high note," Blackman said, "that the correct decision is one where he splits the proverbial baby."

Of course, chief justices — Republican and Democratic, liberal and conservative alike — have uniformly believed that they have a particular duty to maintain public confidence in the court as an institution.

For instance, in 2000, then-Chief Justice William Rehnquist, wrote the opinion upholding a decision he had long reviled, the decision that 34 years earlier required police to warn criminal suspects of their rights.

And, in the 1930s Chief Justice Charles Evans Hughes worked hard behind the scenes, on and off the court, to prevent President Franklin Roosevelt's court-packing plan from becoming law. Some historians believe that he was even instrumental in persuading one justice to moderate his views to defuse the threat.

Today, Roberts faces similar threats: a president who openly and repeatedly castigates judges in partisan and even ethnic terms, and Democratic presidential contenders, who think the number of justices on the Supreme Court should be expanded by statute if the Democrats take control of the Senate. They argue that Republicans, by refusing for nearly a year to consider President Barack Obama's Supreme Court nominee, have so stacked the deck that the move is necessary.

As some who know Roberts observe, while this and other such proposals are still in their relative infancy, the chief justice cannot ignore the alarm bells. And he knows that if the court moves too far to the right and too fast, those bells will only ring louder.

: 7/07/19

In the audio of this story, as in a previous Web version, we incorrectly refer to the South Texas College of Law Houston as the Southwest College of Law Houston.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

STEVE INSKEEP, HOST:

In this country, what are the motivations of the man who runs the Supreme Court?

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: We'll hear argument this morning in case 18-966 - the Department of Commerce v. New York.

INSKEEP: John Roberts commonly calls cases to order and is also a vital player as justices decide how to rule. He recently infuriated the president with one of his rulings. He wrote a 5-4 decision blocking a citizenship question on the 2020 Census.

NPR's Nina Totenberg has been talking with people who observe the chief justice.

NINA TOTENBERG, BYLINE: What was he thinking? That's the question. For some conservatives, the chief justice's vote in the Census case was another original sin, much like his vote in 2012 to uphold key provisions of Obamacare. Some even called for Roberts' impeachment. Curt Levey, president of the conservative Committee for Justice, doesn't go that far. But...

CURT LEVEY: What it means is that having a conservative majority on the court is still a dream rather than a reality.

TOTENBERG: And yet, even Levey concedes that Roberts has been a reliable conservative vote on the court, the census case being the only 5-4 case this term in which he voted with the court's liberals. If liberals were relieved that Roberts recognized that the administration's justification for adding the census question was essentially a lie, they were infuriated by Roberts' other major opinion. Writing for himself and the court's four other conservatives, the chief justice slammed the door shut on court challenges to extreme partisan gerrymanders. The decision will allow some state legislators unfettered discretion to draw congressional and state legislative district lines so as to entrench their own political power. It isn't just liberals who've pushed for some court supervision of extreme partisan gerrymandering.

CHARLES FRIED: There's no doubt there's an agenda here.

TOTENBERG: Harvard Law professor Charles Fried served as solicitor general in the Reagan administration. But he and other Republican former officeholders filed a brief on behalf of those challenging extreme partisan gerrymanders. Alluding to Roberts' famous confirmation hearing comment that the job of a judge is not to bat for one side but to call balls and strikes, Fried had this to say.

FRIED: This is not balls and strikes. This is a long-term, shrewdly played but persistent program to get the law out of anything to do with elections.

TOTENBERG: Fried catalogs Roberts' decisions in this regard. He wrote the court's 5-to-4 decision striking down the Voting Rights Act, a law passed and reenacted repeatedly by large and bipartisan congressional majorities. He wrote or participated in a series of decisions striking down longstanding and newer limits on campaign contributions. These and other decisions, however, are not enough to satisfy Roberts' conservative critics, who view him as something of a traitor - mainly for the Obamacare and census decisions.

Again, Curt Levey.

LEVEY: He often does appear like he's very focused on his legacy and on being popular rather than on doing what a judge should do. All the pressure from the mainstream media and the establishment is to move left.

TOTENBERG: Others have a different explanation. Josh Blackman is a constitutional law professor at Southwest (ph) College of Law Houston.

JOSH BLACKMAN: I think Roberts is motivated by some sort of Solomonic dogma, that in any given case of high note that the correct decision is one where he splits a proverbial baby.

TOTENBERG: Of course, chief justices, Republican and Democrat alike, have uniformly believed that they have a particular duty to maintain public confidence in the court as an institution. For instance, in 2000, then-Chief Justice Rehnquist wrote the opinion upholding a decision he had long reviled, the decision that, 34 years earlier, required police to warn criminal suspects of their rights. And in the 1930s, Chief Justice Charles Evans Hughes worked hard behind the scenes, on the court and off, to prevent Franklin Roosevelt's court-packing plan.

Today Chief Justice Roberts faces similar threats - a president who openly and repeatedly castigates judges in partisan and even ethnic terms; and Democratic presidential contenders who make a different case. They argue that Republicans, by refusing for nearly a year to consider President Obama's Supreme Court nominee, have so stacked the deck that the number of justices on the court should be expanded by statute if the Democrats take control of the Senate.

As some who know Roberts observe, while these kinds of proposals are still in their relative infancy, the chief justice cannot ignore the alarm bells. He knows that if the court moves too far to the right and too fast, those bells will only ring louder.

Nina Totenberg, NPR News, Washington.

[POST-BROADCAST CORRECTION: In the audio of this story, as in a previous Web version, we incorrectly refer to the South Texas College of Law Houston as the Southwest College of Law Houston.]

(SOUNDBITE OF TRISTEZA'S "BALABARISTAS") Transcript provided by NPR, Copyright NPR.