Roberts Naive, Clueless in Combating Political, Social Ills

      Chief Justice John Roberts apparently thinks that federal courts can help counteract the disinformation and dystopia that spreads virally on the Internet these days. Bless his heart, as they might say with bemused condescension back where I come from.

      Roberts' heart may be in the right place, but his head is up in the clouds. He has been well ensconced at the top of the judicial monastery for 16 years now and in the rarefied world of Supreme Court advocacy for 15 years before that. He seems to have no idea of the hard work that would be required from federal courts to counteract what he calls the "rumor and false information" spread by social media "on a grand scale."

      In his annual https://www.supremecourt.gov/publicinfo/year-end/2019year-endreport.pdf>

report on the state of the federal judiciary, Roberts praises federal courts' increased attention to civic education. He cited as a prime example the decade-plus that the retired justice Sandra Day O'Connor devoted to civic education after leaving the Court in 2005. As other examples, he noted that the Federal Judicial Center has prepared online and in-print materials to help educate judges and the public about our constitutional system and that several federal circuits now have civic education forums at their courthouses.

      Roberts notes all these worthy endeavors as he laments the unhealthy role that social media play in 21st century America. "In our age," Roberts writes, "when social media can instantly spread rumor and false information on a grand scale, the public's need to understand our government, and the protections it provides, is ever more vital."

      True enough, but Roberts also opines, without substantiation, that in the years since the founding, "we have come to take democracy for granted, and civic education has fallen by the wayside." This drive-by slur on the American public is a bit much coming from a Supreme Court justice who led the Court in legally dubious decisions that struck down two important federal laws aimed at strengthening democracy by safeguarding voting rights and by limiting the influence of money in politics.

      In both of those decisions, Roberts showed that he was both naive and clueless about the realities of politics in present-day America. He led a 5-4 conservative majority in Shelby County v. Holder (2013) in striking down the most effective enforcement tool in the federal Voting Rights Act after concluding, contrary to Congress, that racial discrimination in voting practices was a thing of the past.

      Congress had repeatedly re-enacted the law along with the so-called preclearance provision that required states and local jurisdictions with a history of discrimination in voting to get federal approval before making any changes in election and voting procedures. Roberts concluded that Congress should have revised the formula used in extending the preclearance requirement based on updated voting statistics. The decision nullified the preclearance requirement and gave states the opening that several took to change voting procedures in ways that made it harder for minority voters to cast ballots.

      A year later, Roberts led the same conservative majority in the 5-4 decision in McCutcheon v. Federal Election Commission (2014) to strike down the aggregate cap on campaign contributions to congressional candidates. That provision, enacted as part of the post-Watergate Federal Election Campaign Amendments of 1974 and later re-enacted, established an overall limit of $46,000 as of 2011-12 on contributions by an individual to congressional candidates even if contributions to individual candidates were within the $2,500 limit.

      Defending the law, the Obama administration and various campaign finance groups argued that the limit on piling up within-the-limit contributions served the legitimate purpose of preventing corruption or the appearance of corruption. Roberts saw no danger and rejected the argument with a nonsensical retort. "The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse," he wrote.

      Needless to say, Roberts did not acknowledge these decisions in his lament about taking democracy for granted, nor did he address important issues of Supreme Court ethics and transparency. He said nothing about the calls from Supreme Court reformers such as Fix the Court to require justices to comply with the same Code of Judicial Conduct that federal judges from magistrates to circuit court judges have to follow.

      All the while touting the importance of public visibility, Roberts had nothing to say about cameras in the Supreme Court courtroom or same-day posting of audio recordings of oral arguments. And, as to ethics issues, he had nothing to say about the decision by two justices, Alito and Kavanaugh, to meet and appear in a photograph with the leaders of an anti-gay group that had filed an amicus brief in the important LGBT rights cases pending at the Court since October.

      As for counteracting rumor and false information, this journalist dares to imagine that Roberts might have made a real contribution by putting in a word or two for the free press. He might have highlighted the importance of the free press in holding public officials at every level of government accountable  from the president down to mayors and city councilors in every city, town, and village in the country. He might have said that baseless attacks on "fake news" undermine the press and give aid and comfort to the groups and individuals spreading false information. Instead, what we got — to borrow a phrase from the Carter era — was "more mush from the wimp."