What is Chief Justice John Roberts up to?

[Rogue 9]

NPR

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

July 8, 20195:00 AM ET
Heard on Morning Edition
Nina Totenberg

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.

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.

Of all the theories, the one that fits the pattern of his decisions is deregulating elections, with his "swing" rulings either principled in some other way or deliberate cover to preserve the public perception of the court depending on how cynical you are. But he wrote an opinion overturning the Voting Rights Act. That's about the clearest signal he could have sent about his opinion on safeguarding elections.

[The Romulan Republic]

I'm inclined to think that Chief Justice Roberts is acting in good faith, as he sees it. I think he's horribly wrong on many issues, but he's broken with the Right-wing dogma on some rather big issues for me to think that that's just a "cover". I think he's an honest man, or at least a man committed to the Court's image of neutrality, who happens to be horrible misguided on certain issues (and probably a racist, given that he bought the Trump administration's watered-down Muslim ban, as well as the gutting of the Voting Rights Act).

I will point out that in at least one case, he has voted against Republican electioneering, that being the Census case (in addition to the obvious racism, its a blatant attempt to reduce the Census count, and thus the Electoral College and House representation, for heavily Latino/pro-immigration states).

[Rogue 9]

In the census case he gave the government another chance to come up with a better argument, though. If the first reason was an obvious sham, what could possibly make the court's majority think that a different post facto excuse would be anything else?

[The Romulan Republic]

In the census case he gave the government another chance to come up with a better argument, though. If the first reason was an obvious sham, what could possibly make the court's majority think that a different post facto excuse would be anything else?

That's what worries me- that they'll come back with some transparent lie that gives the Supreme Court plausible deniability, and he'll vote for it, like with the Muslim Ban. I suppose time will tell.

[houser2112]

In the census case he gave the government another chance to come up with a better argument, though. If the first reason was an obvious sham, what could possibly make the court's majority think that a different post facto excuse would be anything else?

That's what worries me- that they'll come back with some transparent lie that gives the Supreme Court plausible deniability, and he'll vote for it, like with the Muslim Ban. I suppose time will tell.

I'm worried about this too. He doesn't actually disagree with the substance of the Republican argument, just that it needed to be shored up and watertight to prevent a future issue. i don't know what the Republicans are worried about, except that they have to do a bit of work to get him to be technically, in addition to being spiritually, on their side.

[Tribble]

In the census case he gave the government another chance to come up with a better argument, though. If the first reason was an obvious sham, what could possibly make the court's majority think that a different post facto excuse would be anything else?

That's what worries me- that they'll come back with some transparent lie that gives the Supreme Court plausible deniability, and he'll vote for it, like with the Muslim Ban. I suppose time will tell.

I'm worried about this too. He doesn't actually disagree with the substance of the Republican argument, just that it needed to be shored up and watertight to prevent a future issue. i don't know what the Republicans are worried about, except that they have to do a bit of work to get him to be technically, in addition to being spiritually, on their side.

Republicans aren’t worried, they’re infuriated. They are pretty open in their views that judges are little more than extensions of their party. As far as they are concerned any Republican appointed judge who doesn’t go their way 100% of the time is a traitor to the cause. How dare Roberts have independent thoughts?! Thats not what he was put there for!

[Elfdart]

Roberts' goal is to undo every positive gain made in this country since the early 1930s that he thinks he can get away with. That's why he was the swing vote in the census case and the Obamacare case. If he had voted to return the census to being a handy tool to put minorities in concentration camps (as it was with Japanese-Americans in 1942), or to snatch medical care from poor people, there was a good chance for political backlash that could result in either court-packing, removal of cases from the courts' jurisdiction -or both.

[Ralin]

Roberts' goal is to undo every positive gain made in this country since the early 1930s that he thinks he can get away with. That's why he was the swing vote in the census case and the Obamacare case. If he had voted to return the census to being a handy tool to put minorities in concentration camps (as it was with Japanese-Americans in 1942), or to snatch medical care from poor people, there was a good chance for political backlash that could result in either court-packing, removal of cases from the courts' jurisdiction -or both.

That doesn't seem to make much sense. Fucking with the census the way Trump and company wanted to do would make it that much harder for Democrats to get elected and therefore be able to pack the courts. As for Obamacare, okay fine but that backlash was going to happen anyway when the Republicans in Congress tried to do the same thing. What's your evidence on this?

[The Romulan Republic]

Yeah, I tend to think Roberts is pretty much what he appears to be: a conservative of the old school, probably at least some subconscious/latent racism, but someone who genuinely cares about preserving the Supreme Court's credibility rather than just making sure the Republicans/Trump win, which makes him just slightly less of an asshole on some issues than most Republicans.

Edit: Much like Robert Mueller, actually, who is a Republican, probably an asshole by most accounts or at least not very personable, would likely be opposed to my views on many, many issues, but who has a set of core principles regarding the rule of law that he puts ahead of party loyalty (which is a rare thing among contemporary Republicans, at least at the national level).

[Elfdart]

Roberts' goal is to undo every positive gain made in this country since the early 1930s that he thinks he can get away with. That's why he was the swing vote in the census case and the Obamacare case. If he had voted to return the census to being a handy tool to put minorities in concentration camps (as it was with Japanese-Americans in 1942), or to snatch medical care from poor people, there was a good chance for political backlash that could result in either court-packing, removal of cases from the courts' jurisdiction -or both.

That doesn't seem to make much sense. Fucking with the census the way Trump and company wanted to do would make it that much harder for Democrats to get elected and therefore be able to pack the courts.

And if it's done in such a brazen, heavy-handed way that tramples everything in its path, Democrats could retaliate by gerrymandering the states they control. The goal is to make the bullshit seem legally plausible enough that Dems won't fight back. That's why they sent the case back so Barr can have another chance to dot every i and cross every t.

As for Obamacare, okay fine but that backlash was going to happen anyway when the Republicans in Congress tried to do the same thing. What's your evidence on this?

The difference is that the Court only has as much clout as Congress or the President is willing to let them have. If a Supreme Court ruling is too annoying, Congress or the White House could simply ignore it or flout it like Andrew Jackson did ("They have made their decision -now let them enforce it."). Or they could strip the courts of jurisdiction (like the Radical Republicans did during the early part of Reconstruction). Or they could try to pack the courts like FDR tried to do.

[The Romulan Republic]

Of relevance:

https://www.cbc.ca/news/world/border-wa ... -1.5227386

The U.S. Supreme Court has cleared the way for the administration of President Donald Trump to tap Pentagon funds to build sections of a border wall with Mexico.

The conservative-majority court on a 5-4 vote blocked in full a ruling by a federal judge in California barring the Republican president from spending the money on the basis that Congress did not specifically authorize the funds to be spent on the wall project fiercely opposed by Democrats and Mexico's government.

The Supreme Court action means the Trump administration can tap the funds and begin work on four contracts it has awarded.

A trial court initially froze the funds in May and an appeals court kept that freeze in place earlier this month. The freeze had prevented the government from tapping approximately $2.5 billion US in Defence Department money to replace existing sections of barrier in Arizona, California and New Mexico with more robust fencing.

"Wow! Big VICTORY on the Wall. The United States Supreme Court overturns lower court injunction, allows Southern Border Wall to proceed. Big WIN for Border Security and the Rule of Law!" Trump tweeted just minutes after the court acted.

The case the Supreme Court ruled on began after the 35-day partial government shutdown that started in December of last year. Trump ended the shutdown in February after Congress gave him approximately $1.4 billion US in border wall funding. But the amount was far less than the $5.7 billion US he was seeking, and Trump then declared a national emergency to take cash from other government accounts to use to construct sections of wall.

The money Trump identified includes $3.6 billion from military construction funds, $2.5 billion in Defence Department money and $600 million from the Treasury Department's asset forfeiture fund.

The case before the Supreme Court involved just the $2.5 billion in Defence Department funds, which the administration says will be used to construct more than 100 miles of fencing. One project would replace 46 miles of barrier in New Mexico for $789 million US. Another would replace 63 miles in Arizona for $646 million. The other two projects in California and Arizona are smaller.

The other funds were not at issue in the case. The Treasury Department funds have so far survived legal challenges, and Customs and Border Protection has earmarked the money for work in Texas' Rio Grande Valley but has not yet awarded contracts. Transfer of the $3.6 billion in military construction funds is waiting on approval from the defence secretary.

The lawsuit at the Supreme Court challenging the use of the Defence Department funds was brought by the American Civil Liberties Union on behalf of the Sierra Club and Southern Border Communities Coalition.

The justices who lifted the freeze on the money did not give a lengthy explanation for their decision. But they said among their reasons was that the government had made a "sufficient showing at this stage" that those bringing the lawsuit don't have a right to challenge the decision to use the money.

Alexei Woltornist, a spokesman for the Justice Department, said in a statement: "We are pleased that the Supreme Court recognized that the lower courts should not have halted construction of walls on the southern border. We will continue to vigorously defend the administration's efforts to protect our nation."

ACLU lawyer Dror Ladin said after the court's announcement that the fight "is not over." The case will continue, but the Supreme Court's decision suggests an ultimate victory for the ACLU is unlikely. Even if the ACLU were to win, fencing will have already been built.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan would not have allowed construction to begin. Justice Stephen Breyer said he would have allowed the government to finalize the contracts for the segments but not begin construction while the lawsuit proceeded. The administration had argued that if it wasn't able to finalize the contracts by Sept. 30, then it would lose the ability to use the funds. The administration had asked for a decision quickly.

The Supreme Court is on break for the summer but does act on certain pressing items.

The Roberts court approves Trump pilfering Pentagon funds to do an end run around Congress's power of the purse. And one of the main Constitutional checks on the President's absolute power further deteriorates.

[GrosseAdmiralFox]

The thing about Roberts is that he doesn't want to be the idiot that would be forever remembered killing the judicial branch of the government and anyone carrying his family name would be basically destroyed economically, socially, and politically.

Basically, people would reserve a very special place in hell for him and make anyone of his family have a literal living hell while alive.

So, right now he's staying as low as he can and trying not to do stupids that would kill the judicial branch's ability to be part of the separation of powers that the US is literally built upon.

Remember, in the 20th century, court stacking has been effectively the nuclear option/Rubicon in the US and will carry a lot of unintended consequences down the line... which is part of the reason why after FDR's attempt the Supreme Court was less... hostile... to FDR's New Deal.

[Ralin]

The thing about Roberts is that he doesn't want to be the idiot that would be forever remembered killing the judicial branch of the government and anyone carrying his family name would be basically destroyed economically, socially, and politically.

Basically, people would reserve a very special place in hell for him and make anyone of his family have a literal living hell while alive.

And you base this on...?

[houser2112]

The thing about Roberts is that he doesn't want to be the idiot that would be forever remembered killing the judicial branch of the government and anyone carrying his family name would be basically destroyed economically, socially, and politically.

Basically, people would reserve a very special place in hell for him and make anyone of his family have a literal living hell while alive.

And you base this on...?

While GAF is being a bit hyperbolic in his/her conclusions, I think the basic premise of Roberts worrying about his legacy is sound.

[GrosseAdmiralFox]

And you base this on...?

The very fact that without the judicial branch, it'll get a whole lot messier than you would believe. That... would make Roberts and his family targets because -unsurprising- Roberts just fucked the US system to the point it doesn't really work anymore since you can simply keep stacking the courts whenever you get judges that you don't like...

[Ralin]

The very fact that without the judicial branch, it'll get a whole lot messier than you would believe. That... would make Roberts and his family targets because -unsurprising- Roberts just fucked the US system to the point it doesn't really work anymore since you can simply keep stacking the courts whenever you get judges that you don't like...

The latter happened several decades ago, and I'd like proof other than your say so that Roberts is afraid that he and his family would be targeted for violent revenge if it happened again. Or indeed that such a thing is likely to happen, because I can't think of any precedents for it in the US. In fact, the person most famous for messing with the judicial branch by court-stacking the way you describe is FDR, who was super popular at the time and well regarded still.

[Straha]

And you base this on...?

The very fact that without the judicial branch, it'll get a whole lot messier than you would believe. That... would make Roberts and his family targets because -unsurprising- Roberts just fucked the US system to the point it doesn't really work anymore since you can simply keep stacking the courts whenever you get judges that you don't like...

I have first hand experience with the US Marshall's protecting judges. Suffice to say even District judges have levels of protection you would likely not believe, and threats to their family are not what motivates them.


My favorite John Roberts anecdote is this: There was a case being argued before SCOTUS about an illegal search at a traffic stop. Roberts asked 'What happens if you get pulled over for speeding?' and everyone laughed. Then they realized he was serious. He's a man who has lived an incredibly sheltered adult life starting at Harvard, and who has only ever been in the service of the Federal Government or very high level legal jobs in D.C. He has spent the last 18 years of his life in the Judiciary. That leaves you with an incredibly warped perspective on life and what the role of the judiciary is.

From that perspective most of his decisions make sense as ones trying to preserve the court's integrity, the court's separation from mainstream politics, and the court's respect as an independent branch. The fact that he doesn't understand how this is being read speaks much more to his background than it does to anything else.