The Roberts Court

Linda Greenhouse is an astute observers of the U.S. Supreme Court, so when I see her byline on an article, I read it carefully. Last Sunday, she provided an 18-year overview of the Roberts Court,— providing readers with a chilling description of what Americans have lost since John Roberts assumed the position of Chief Justice.

Greenhouse noted that the just-completed term was in many respects the capstone of Roberts’ 18-year tenure. As she writes,

To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

When Roberts joined the Court, Greenhouse says there was a “robust conservative wish list.” She then enumerates the items on that wish list:  overturning Roe v. Wade, reinterpreting the Second Amendment in order to turn gun ownership into a constitutional right, the elimination of race-based affirmative action in university admissions, the elevation of religion within the legal landscape (Greenhouse doesn’t say it, but what was wanted was the elevation of Christianity–not just “religion”)–and a drastic reduction of federal agencies’ regulatory power.

Despite the fact that William Rehnquist, the prior Chief Justice, was a committed conservative, the Court had not accomplished a single one of those goals. Greenhouse describes the case decisions that had failed to accomplish that conservative wish list– establishing precedents that would seem to preclude their realization.

That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.

t’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.

Lawyers point out that the major questions doctrine was invented out of whole cloth; it is certainly nowhere to be found in the Constitution or prior case law. Greenhouse notes its utility to a rogue Court: “how to tell a major question from an ordinary one? No surprise there: The court itself will decide….it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.”

You really need to click through and read the entire essay, because Greenhouse does a masterful job of explaining the disingenuous reasoning that allowed the Court’s majority to impose its reactionary policy preferences while ignoring “settled” law.

The web designer case was among the most egregious:

The court has created a religious opt-out from compliance with laws that govern the commercial marketplace…. [Gorsuch’s] opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.

But none of those precedents are relevant, because none involved discrimination by a commercial entity.

The essay concludes that the Court “has become this country’s ultimate political prize…  from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.”

Absent a Blue wave in 2024, it will only get worse.


Losing My Faith

Faith isn’t only important for religions that emphasize faith over works.

Living emotionally healthy lives also involves having faith in our families and friends, and in our social institutions. Faith in the trustworthiness of government is critically important to the maintenance of a democratic polity–and after many years, I’ve lost my (undoubtedly naive) faith in part of America’s government–the Supreme Court. 

It was bad enough watching Brett Kavanaugh engage in his very un-judicial hysterical rant during his confirmation. It was infuriating when Mitch McConnell publicly displayed the game-playing that goes into elevating nominees to the highest court in the land. And of course, the almost-daily revelations about Justice Thomas are enough to make an ethical lawyer gag.

The rank dishonesty of today’s Court–on display when Alito’s theocratic impulses won majorities in Hobby Lobby and Dobbs–are far from the only evidence that the Court is not the collection of thoughtful, dispassionate legal analysts I once fondly believed.

A recent book by Stephen Vladeck focuses on the Court’s increased use of the shadow docket. Vladeck shows how the conservative justices ignored decades-old norms by using that docket, which doesn’t require briefing or consideration of the merits, to issue a series of shadowy unsigned and unexplained emergency orders.

The Shadow Docket was created as a mechanism to deal with issues requiring an immediate ruling on procedural matters, such as scheduling, or situations requiring maintenance of the status quo until the case could be considered on the merits, to avoid irreparable harm to a litigant.

Vladeck’s book describes the largely unnoticed shift towards what he calls “furtive justice.”  “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” argues that rightwing justices have “abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.”

Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.

It shouldn’t surprise us that the current Court is experiencing a crisis of legitimacy, but like many lawyers, I stubbornly believed that the Court’s dysfunctions were of relatively recent vintage. (Thanks, McConnell!)

Then I read Erwin Chemerinsky’s 2015 book: The Case Against the Supreme Court.

Chemerinsky is one of my legal heroes. He’s an American legal scholar widely respected for his studies of constitutional law and federal civil procedure. Since 2017, he’s been the dean of the UC Berkeley School of Law. (I was once on a panel with him, and he was erudite and self-effacing and altogether charming.)

The book is a scathing critique of the Supreme Court for failing–throughout its history– to carry out its most important responsibilities at critical moments. According to Chemerinsky, the two “preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities.” 

In the book, Chemerinsky goes through the Court’s jurisprudential history, identifying case after case in which the Court failed to take a stand for constitutional rights and principles. He gives example after example of the Court’s “decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis.” “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect.”

Chemerinsky acknowledges that the Court has occasionally performed as we would hope, in cases like Brown v. Board of Education, but even the Warren Court–a high-water Court in the opinion of most legal scholars– doesn’t escape reproof. (He details in one chapter how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments.”)

Chemerinsky absolutely eviscerates the Roberts Court–and that was in 2015, before Gorsuch, Kavanaugh and Barrett– enumerating the many ways in which that Court continues to favor the powerful over citizens in a wide range of areas from generic drug manufacturers to voting rights.

The book does provide a laundry list of reforms that might ameliorate the deficiencies: term limits for the Justices, several changes to the way the Court communicates, and –importantly–rigid ethical requirements and recusal procedures. 

 Vladeck and Chemerinsky–and the Roberts Court–have disabused me of my prior, naive faith in the Court. The domination of Congress by the GOP’s version of the Keystone Kops had previously removed any remaining confidence or faith in that body.

That leaves one leg of a three-legged stool……  


Justice Roberts Knows Better

Survey research has shown a sharp increase in the number of Americans who have very negative opinions of the Supreme Court. In response to that research, Chief Justice Roberts recently delivered an admonition: “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Really, Justice Roberts? Were you able to deliver that pearl of wisdom with a straight face?

As a number of pundits have noted–and as Roberts certainly knows– the dramatic drop in approval isn’t a consequence of unpopular results. It’s a consequence of the shocking dishonesty of the reasoning used to achieve those unpopular results, and the blatant illegitimacy of the processes that seated political/religious ideologues on the Supreme Court bench.

One of the most incisive responses to the Chief Justice’s weak defense was written by (formerly Republican) Jennifer Rubin, in the Washington Post.

Rubin correctly characterized Roberts’ remarks as unprofessional “whining,” noting that “no court was more heavily criticized than the Warren court.”

Yet you did not hear a constant drumbeat of complaints from the justices themselves. They let their opinions and history do the talking — an approach the current court, which is widely and correctly seen as partisan and peevish, would do well to follow.

After noting that Roberts “really doesn’t get it,” and marveling about the degree to which the current court is “utterly and completely tone-deaf to its role in the destruction of its own integrity,”  Rubin  issued a withering critique that pinpointed the reasons this Court is so widely–and correctly– viewed as illegitimate:

Roberts would rather not address the root of the court’s credibility crisis: its conservative members’ blatant disregard of nearly 50 years of precedent, their misuse and abuse of facts and history, their penchant for delivering public screeds in political settings, their misleading answers in confirmation hearings, their improper use of the shadow docket, their prior placement on the shortlist of potential justices by right-wing dark-money groups attempting to transform the judiciary, their opposition to adhering to a mandatory code of judicial ethics — and a refusal by Thomas to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, despite the anti-democracy activism of his wife, Ginni.

And let’s not forget: The court got its 6-3 supermajority largely through GOP hypocrisy and Congress’s refusal to take up the nomination of Merrick Garland in the last year of Barack Obama’s presidency.

Rubin’s column quotes a number of highly respected legal scholars who have been appalled by highly politicized decisions issued by this court.

It is true, as Rubin acknowledges, that Roberts didn’t author the most egregious opinions, but he has joined them. Rubin identifies the abortion ruling in Dobbs, the prayer-in-schools ruling in Bremerton, and the Brnovich decision on voting rights, written (again!) by Alito–a decision that Norman Ornstein accurately criticized as blatantly ignoring the plain language of the law and rewriting it to fit his “partisan and ideological views.”  She also quotes Ornstein’s observation that Roberts has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

Rubin quotes Stephen I. Vladeck, a law professor at the University of Texas saying  “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?” The operative word in that quote is “principled.” Americans respond very differently to Supreme Court decisions with which they disagree when they can see that those decisions were principled exercises in legal analysis rather than obvious distortions of facts and precedents employed to reach a preferred result.

Americans will also respond differently to decisions that expand American liberties rather than  reverse them. This Court is the first in U.S. history to constrict, rather than enlarge, individual liberty. When it removed a constitutional right that Americans had relied upon for  fifty years through a historically dishonest and legally-tortured decision, the Court focused  a glaring spotlight on its own illegitimacy.

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

Good proposals, but they will only be possible if large majorities of Americans vote Blue in November.


Free Speech For Those Who Can Afford It

When John Roberts was elevated to the Supreme Court, my concerns weren’t focused on his likely conservative/ideological rigidity. (That was —and remains–my concern with subsequent Justices.) My “reading” of Justice Roberts was that he would instinctively side with power and authority–that he was likely to be pro-government and pro-business elite in situations calling for more searching inquiry into the equities involved.

I am not happy to report that my concerns were well-founded.

Roberts is solicitous when it comes to the rights of American elites. The defense of corporate “free speech” rights in Citizens United required an airy disregard of the foreseeable consequences of that decision for the electoral system. The opinion simply ignored the issue of disproportion, disingenuously equating the free speech rights of everyday citizens with the free speech rights of those who have massive resources at their disposal.

The problem began when the Court equated money with speech, and in Citizens United and several subsequent cases, it has steadily chipped away at McCain-Feingold restrictions meant to level the political playing field.

A few days ago, Len Farber reminded us of the quote from Anatole France that is perfectly applicable here: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The most recent example of this sanctimonious and dishonest approach to the constitutional right of free speech came in a case brought by the odious Ted Cruz.

The case challenged a law limiting the amount of campaign funds that can be used to repay personal campaign loans to $250,000.  In a decision further weakening campaign finance regulations, the court held that a federal cap on candidates’ use of political contributions after an election to recoup personal loans made to their campaign was unconstitutional.

Roberts wrote the majority opinion, protecting the “free speech” rights of candidates with the resources to lend their campaigns enormous sums. Justice Elena Kagan cut through Roberts’ “free speech” pose to zero in on the real issue.

In her dissenting opinion, Kagan criticized the majority for ruling against a law that she said was meant to combat “a special danger of corruption” aimed at “political contributions that will line a candidate’s own pockets.”

In striking down the law today,” she wrote, “the Court greenlights all the sordid bargains Congress thought right to stop. . . . In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute.”

Indeed, she explained, “Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption — the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

Even if we give Roberts the benefit of the doubt–if we assume that, from his lofty perch, he really doesn’t understand how the political “real world” works–it’s difficult to understand this decision. (Former Congressman Lee Hamilton used to say that the Supreme Court would benefit greatly from fewer Ivy League graduates and more Justices who had run for county sheriff–people who understood the gritty realities of political life.)

Cruz argued that “by substantially increasing the risk that any candidate loan will never be fully repaid,” the law forces a candidate to think twice before making those loans in the first place. The underlying assumption of his argument, of course, is that “serious”candidates for office are wealthy enough to self-finance their campaigns. This decision allows those wealthy candidates to do so without risking an actual loss of some portion of their funds, because they can now recoup the entire amount from post-election campaign fundraising.

As the Deputy Solicitor argued, the law “targets a practice that has significant corruptive potential.”

“A post-election contributor generally knows which candidate has won the election, and post-election contributions do not further the usual purposes of donating to electoral campaigns,” he said.

Campaign finance watchdogs supported the cap, arguing it is necessary to block undue influence by special interests, particularly because the fundraising would occur once the candidate has become a sitting member of Congress.

As one election law expert commented, “the Court has shown itself not to care very much about the danger of corruption, seeing protecting the First Amendment rights of big donors as more important.”

As an Atlantic  newsletter concluded: campaign-finance regulation in the U.S. has all but vanished.

This decision is more evidence–as if we needed it– of a Court that has lost its way.