False Modesty: John Roberts’ Utter Lack of Restraint

“Fark John Roberts.” One of my conservative friends posted this comment on Facebook yesterday in the wake of the Supreme Court’s decision upholding the Affordable Care Act, in which the Chief Justice unexpectedly sided with the four liberal justices to preserve one of President Barack Obama’s landmark legislative achievements. To be fair, it is easy to understand why my conservative friend might feel betrayed that Roberts, a George W. Bush appointee with a record as a right-wing ideologue, turned a near certain defeat for Obama into a triumph. Imagine how progressives would have felt if Breyer, Ginsburg, Sotomayor or Kagan had ruled against the constitutionality of the Voting Rights Act or affirmative action.

In essence, though, they may have done just that, as the Supreme Court will soon hear cases on those very subjects. While some observers have adopted the view that Roberts used the health care reform decision to recast himself as a believer in judicial restraint, it is more likely that Roberts made a calculated ploy to achieve a major right-wing victory while also establishing cover for decisions that will have conservatives like my friend praising Roberts’ name.

Noah Feldman, a professor of constitutional law at Harvard, has been the main advocate for the “Roberts as evenhanded King Solomon” viewpoint. According to Feldman, Roberts put his politics aside and instead nobly followed his ethics. He claims Roberts feared becoming the chief of “the most activist conservative court since the 1930s” and opted instead for acknowledging Congress’ ability to levy taxes. If Obama and other Democrats had refused to identify the penalty for not complying with the health care bill’s individual mandate, then Roberts was merely speaking truth to power, forcing the Democrats to own up to the law they passed. Although Roberts made it clear in his opinion that he did not think the Commerce Clause of the Constitution allowed for Congress to impose the individual mandate, Feldman hand-waves this as insignificant, as Roberts “wav[ing] the conservative standard” and no more.

There are a number of problems with this. First, if Roberts wants “judicial restraint” to be synonymous with his court, he has done a lousy job so far. In fact, as Jeffrey Toobin, Thomas Mann and others have exhaustively documented, Roberts took a major role in the now infamous Citizens United decision in 2010. Assuming you’ve been living under a rock for the last three years, Citizens United overturned over a century of national and state campaign finance laws, equating corporate donations to political campaigns with free speech and basically undoing all legal obstacles to “dark money” in politics. Rather than determining whether the McCain-Feingold campaign finance law applied to a documentary, Toobin tells us Roberts instead overruled not just McCain-Feingold but two Supreme Court precedents – one decided as recently as 2003 – ensuring “moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.” Cleverly, Roberts allowed Anthony Kennedy, an extreme libertarian for whom “government regulation” is a dirty word, to pen the majority decision, thereby distancing Roberts from charges of hypocrisy. After all, during his confirmation, Roberts had claimed he would defer to precedent. Citizens United proved otherwise, and given its notoriety as the Roberts Court’s most well-known decision so far, Feldman’s claim that Roberts wants a modest legacy is clearly risible.

The second problem with Feldman’s argument is that Roberts’ reading of the Commerce Clause amounts to much more than hat-tipping to a right-wing talking point. In her dissent, Ginsberg called Roberts’ interpretation of the clause “stunningly retrogressive,” likening to that invoked at the turn of the century, when the Supreme Court elevated contracts between employees and employers above social issues. This period, known as the Lochner era, saw the Court issue numerous rulings that struck down laws protecting the health and safety of working people. If Roberts is indeed signaling his intent to take the Court back to this view, in which the Fourteenth Amendment equates to social Darwinism (to paraphrase Oliver Wendell Holmes’ dissent on Lochner), the implications are huge. If Congress does not have the power to regulate health insurance, whose market exceeds $2 trillion per year and takes up over 17% of our yearly GDP, what power would it have to regulate the energy industry and combat global warming? Perhaps more importantly, what could happen to other laws that rest on the conventional doctrine of the Commerce Clause, like the Civil Rights Act of 1964, should they come up for review in the future? A new, strict reading of the Commerce Clause is a radical step for the Court to take – or, more accurately, a massively reactionary step that takes the Court to a mentality over a hundred years in the past. It is doubtful that progressives showering love on the Court’s decision on the Affordable Care Act will do the same when the Court potentially uses the decision to permit businesses to discriminate against non-white customers or to allow those businesses to pump as much emissions as they please into the atmosphere.

It may not take as long as one of those hypothetical scenarios coming true for liberals to resume their hatred for Roberts and the Roberts Court, however. Sometime next year, the Court will determine the constitutionality of Section 5 of the Voting Rights Act, which forces several jurisdictions (mostly in the Deep South) to get “preclearance” from the Justice Department to amend their electoral laws. The point of the law then and now is to prevent those jurisdictions from passing reforms that would make it difficult or impossible for racial minorities to vote. The Voting Rights Act was renewed for 25 years in 2006, prompting outrage from conservatives, who predictably argued that times have changed and racial discrimination vis-à-vis voting is no longer a problem. The issue came before the Supreme Court in 2009 but was dismissed on technical grounds, but not before Roberts indicated he would strike down Section 5 because “discriminatory evasions of federal decrees are rare” and “minority candidates hold office at unprecedented levels.” Yet is it all that remarkable that “minority candidates hold office at unprecedented levels” when that level was negligible fifty years ago, when Jim Crow was in full effect? We may have an African-American president in the White House, but the cases of Henry Louis Gates, Jr. and Trayvon Martin demonstrate we certainly do not live in a “post-racial society.”

More to the point, though, the rise of voter ID laws in mostly Southern states (surprise, surprise) serves as proof positive that voting rights laws are still relevant. Led by neo-nativists like Kansas Secretary of State Kris Kobach, right-wingers throughout the South and Heartland are promoting the baseless conspiracy theory that voter fraud is a major issue that requires the implementation of voter ID laws as well as purges of “non-citizens” – who, as the Washington Post points out, may actually be citizens entitled to vote. Although research shows actual occurrences of voter fraud to be minor at most, Republican governments – like Rick Scott’s government in Florida – are going forward with efforts that may end up disenfranchising minority voters who tend to vote Democratic (surprise, surprise again). If anything, Obama’s election in 2008 awoke an ugly side of conservatives, revealing a prejudice that if minorities turned out in huge numbers to elect one of their own, they must be doing it illegally. If the protections provided by the Voting Rights Act have been successful, that success is not an argument for the act’s demise.

If Roberts is poised to kill the Voting Rights Act, his axe is also sharp for affirmative action. Many thought the issue settled for some time in 2003 with the Grutter decision, in which the Supreme Court allowed states to consider race in university admissions processes. Yet this will likely be reversed when the Roberts Court hears Fisher v. University of Texas, as Roberts showed in a 2007 opinion that he does not see much merit in affirmative action as a method of promoting “racial diversity.” With Kagan stepping to the sidelines due to her involvement in the case as solicitor general, the door is wide open for Roberts to lead the way in once again reversing something most people would have stated was settled.

Feldman’s analysis is wrong. Roberts did not put his principles before politics. If anything, this Supreme Court is defined by its partisanship. Like most Americans, I don’t expect the Court to be unanimous in its decisions. The Court is not intended to hear easily resolved cases, obviously. What is expected, however, is that the Court’s justices put aside their personal ideologies in the interests of doing what is just. In many instances, this means affording proper reverence to past decisions, giving fair treatment to plaintiffs and defendants alike. In rare cases, the Court may break with precedent, as it has done on civil rights, when justice conflicts with the law. It is hard to perceive, however, what is just in allowing money to drown out regular people in politics, in preventing the federal government to manage economic activity, in permitting obstacles to minorities voting or in blocking institutions from seeking diversity in their admitted membership. It is very easy, though, to see how this Court serves the interests not of the public but the political parties that put them where they are.

The legacy of the Roberts Court will not be one of pragmatism, restraint or diffidence. Instead, it will be a dismal exhibit of when the expediency of political interests tipped the scales of justice.

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