Republican politicians and
conservative Supreme Court watchers are angry, angry, angry with Chief Justice
Roberts because of his votes in four of the term’s fifty-three decisions so
far. Those four votes in divided cases left conservatives with egg on their faces for their political agenda on such culture war issues as abortion, gay rights,
gun laws, and immigration.
A more complete examination
of Roberts’ votes, however, shows that he has been a reliable conservative vote
in decisions that divide along the usual conservative-liberal lines. He has
toed the conservative line in criminal law and civil litigation issues and in
two decisions that rejected efforts by Democrats and progressive groups to ease
absentee ballot voting in Wisconsin and Alabama during the current coronavirus
pandemic.
Among twelve 5-4 decisions
this term, Roberts has been in the majority in every one. He gave the liberal bloc a critical fifth vote in
only two: the decision to strike down a Louisiana abortion law and the decision
to block the Trump administration from rescinding the DACA program protecting
undocumented immigrants brought to the United States as children.
Roberts provided the sixth
vote in the decision that extended the federal civil rights law known as Title
VII to prohibit discrimination in the workplace on the basis of sexual
orientation or gender identity. Roberts was also part of a six-justice majority
in the New York City gun rights case that ended with a nothing-burger after the
city repealed the challenged handgun transportation ordinance.
The armchair psychologists
on the right think they know why Roberts strays from conservative dogma. Most
commonly, Roberts is viewed as concerned with protecting the Court’s
institutional integrity in this hyperpartisan political era. Harvard law
professor Richard Lazarus, a friend of Roberts from law school days, views
Roberts as trying to send a message to the political branches. “You cannot expect
us to behave like partisan legislators,” Lazarus surmises as Roberts’ message,
as quoted by the New York Times’ Supreme Court
correspondent, Adam Liptak.
Arkansas’ firebrand
Republican senator, Tom Cotton, was among the GOP politicians who denounced
Roberts for playing politics with his vote in the Louisiana abortion case. “The
chief justice may believe that he’s protecting the institutional integrity of
the court,” Cotton remarked to Liptak, “but in reality his politicized
decision-making only undermines it.”
Liptak also describes
unnamed conservatives as believing that Roberts’ votes against the
administration are motivated by a personal distaste for Trump. These arm-chair
psychologists apparently have forgotten that Roberts cast a decisive vote in
Trump’s first year in office to uphold Trump’s “Muslim travel ban” despite the distasteful
religious and ethnic bias in Trump’s campaign and post-election explanations
for the policy. Other critics view Roberts as playing to predominantly liberal
editorial pages and the generally liberal slant in legal academia.
In the current term,
Roberts did an enormous favor for Trump in his unilateral order on May 8 to
stay the D.C. Circuit’s order granting the House Judiciary Committee access to
redacted portions of the Mueller report. Now, surely with Roberts’ support, the
Court is letting Trump run out the clock even further by deciding to review the
D.C. Circuit’s decision sometime next term, with no decision possible before
the November election.
The conservative grievances
with Roberts are so strong that Matt Schlapp of the American Conservative Union
is even invoking the “I” word. “If it were up to me, I’d start
impeachment proceedings,” Schlapp remarked on Fox News as quoted in a
Washington Post account. “If he’s not going to be impeached,
he ought to resign and run for Congress.”
Curt Levey, president of
the conservative Committee for Justice, worries just as darkly in an op-ed in
the Post [July 2] that Roberts is “following in the
disappointingly centrist footsteps of previous swing justice Anthony M.
Kennedy.” Levey concedes that a conservative jurisprudence may not always yield
conservative results, but he goes on to accuse Roberts of being “guided by
ideological or political objectives.”
In fact, Roberts’ votes in
the four cases that upset conservatives this term reflect conservative
principles straight out of the judicial restraint textbook. In the abortion
case, June Medical Services v. Russo, Roberts followed
precedent in providing the fifth vote needed to strike down a Louisiana law
virtually identical to a Texas law struck down four years earlier. In the
immigration case, Roberts led the 5-4 majority in Regents v.
Department of Homeland Security in holding, in effect, that the
president cannot abolish a government program based solely on disagreement with
the policy or his unsupported view of its supposed illegality.
Roberts followed “plain
meaning” principles of statutory construction in the Title VII case,
Bostock v. Clayton County, by concluding that a law
prohibiting discrimination on the basis of sex necessarily encompasses
discrimination based on sexual orientation or gender identity as well. As for
the New York City gun law case, the dispute was clearly moot after the city
repealed the ordinance. Roberts’ vote reflected his aversion to judicial
activism as seen in his frequent phrasing: “If it’s not necessary to decide a
question, it is necessary not to decide it.”
Roberts need have no fears
of impeachment. With lifetime tenure, he can survive the slings and arrows of
outrageous fortune from the political right. But the conservative critics who
accuse him of playing politics betray themselves by viewing the Court’s
decisions solely through their narrow political lenses.
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