The quotations in the headline are from an analysis by CNN's Joan Biskupik ("Analysis: John Roberts remains confounded by Donald Trump as election approaches"). She reports that, at a time when the public's view of the Supreme Court has fallen dramatically, "Roberts was shaken by the adverse public reaction to his decision affording Trump substantial immunity from criminal prosecution. His protestations that the case concerned the presidency, not Trump, held little currency." (That decision would be Trump v. United States, handed down on July 1 of this year.)
Roberts seems perplexed with the sour view the American public has of the current Supreme Court, which (as I've frequently noted) reliably sides with Republicans in the most significant cases that starkly divide the two parties. Whether Roberts is being disingenuous, or he's too deep within a hermetically sealed bubble to comprehend, I can't say. But Americans have every reason to mistrust this court -- and the court's Republican supermajority.
Balls and strikes
The chief justice professes to regard the court and the justices as divorced from politics, as he insisted in a written statement to the Senate Judiciary Committee in 2005, when he was confirmed as chief justice:
… Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.
That's how Roberts would like us to view his decisions. It's fair to say that a multitude of observers have had occasion to question Roberts' fidelity to this declaration of his judicial approach. For many, Roberts appears more like a intense competitor on the playing field, not an impartial umpire.
Biskupik doesn't quote the infamous balls and strikes metaphor. Instead, she points us toward a 2009 interview with the chief justice on C-SPAN. Let's look at what Roberts says regarding the role of the court [my italics]:
I think the most important thing for the public to understand is that we’re not a political branch of government. They don’t elect us. If they don’t like what we’re doing, more or less it’s too bad. Other than impeachment, which has never happened – conviction and impeachment has never happened with the court.
So they need to understand, when we reach a decision, it is based on the law and not a policy preference. For example, when we reach an environmental decision that comes out in favor of environmental groups, you often read in the paper that the court ruled in favor of environmental group or court supports environmental protection.
All we’re doing is interpreting law. The decision has been made by Congress and the president. And we’re just exercising our responsibility to say what the law is. We’re not ruling in favor of one side or in favor of another.
It's hard to square this with the actual decisions of the court. Many significant cases before the high court pit the interests of the two political parties against one another. In case after case after case, the court's Republican-appointed majority favors the Republican side in these conflicts. These decisions, often 6-3 or 5-4, consistently advantage the Republican Party. And that frame, Republican Party vs. Democratic Party, is a much better predictor of majority opinions than reliance on, say, originalism or textualism or strict constructionism.
Biskupik observes [my italics]:
Roberts, who will turn 70 in January, faces a new slate of major cases to be heard in the coming months, including disputes over transgender rights, gun control, the death penalty and a possible return of Trump litigation. But perhaps the more significant immediate test of Roberts’ leadership will be litigation around the November 5 presidential election and the counting of votes.
The Roberts Court has been in sync with the GOP political agenda largely because of decisions the chief justice has authored: For Trump and other Republicans. Against voting rights and racial affirmative action. Against federal regulations over environmental, public health and consumer affairs.
Roberts’ pattern of favoring GOP interests has been entrenched by his decisions in such cases as the 2013 Shelby County v. Holder (gutting part of the Voting Rights Act) and the 2019 Rucho v. Common Cause (preventing US courts from stopping political parties from gerrymandering voting districts to their advantage).
Policy preferences
It won't do for John Roberts to insist that policy preferences do not guide the Republican majority's decisions. The 2013 Shelby County decision is illustrative. As a young attorney in the Reagan Justice Department, John Roberts vigorously opposed strengthening the Voting Rights Act of 1965. He was named point-man in the administration to defeat an amendment increasing voter protections. The Act passed the House as amended, 383-24; the Senate concurred, 85-8. President Ronald Reagan signed the bill into law on June 29, 1982.
Roberts lost the 1982 battle (which benefited Democratic constituencies), but 30 years later in Shelby County, the Roberts Court in a 5-4 ruling succeeded in disabling the Act (which advanced Republicans' electoral prospects) by throwing out preclearance. Roberts wrote for the majority:
“Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”
Justice Ruth Bader Ginsberg wrote in dissent:
Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
The decision served its purpose. Republican states immediately began enacting voting restrictions, resulting in a drop in Black voting registration. That result is a strong policy preference of the Republican Party.
Hacks Politicians in robes
Let's dispense with subtlety. John Roberts has been a Republican political operative throughout his adult life. He has never strayed from that career track, never ceased to act in service to the Republican Party and its interests. That's why he was rewarded with a seat on the Supreme Court. So too the other four Republican men on the court: all have devoted their careers to the Republican Party and the issues it embraces. That, not fidelity to the Constitution, nor originalism (and certainly not conservative judicial principles, such judicial restraint, adherence to precedent, or even federalism and respect for the other two coequal branches of government) explains their partisan decisions.
Partisan Constitution
The raison d'être of the Republican supermajority on the Supreme Court is to revamp the Constitution of the United States to favor the policy preferences of the Republican Party. That's why Republican presidents, Senator Mitch McConnell, Leonard Leo, and a multitude of other GOP partisans have endeavored to place these men on the nation's highest court. The overriding mission of the Roberts Court is to harm the Democratic Party, by suppressing the voting and representation rights of its constituents and obstructing Democratic public policy initiatives.
The first primary thread in this campaign is to disadvantage Democrats by permitting Republican states to impose voting restrictions and gerrymander districts. The second primary thread is to rule out of order Democratic public policy preferences after Democrats have won elections (in spite of the obstacles to voting and representation crafted by Republicans). The Republican majority on the court seeks to render Democratic Congresses and Democratic presidents incapable of enacting legislation and engaging in rule making to fulfill their campaign pledges. Thus, the assault on the administrative state.
The Supreme Court is part and parcel of the MAGA culture war, which seeks to return the country to a previous era before racial and religious minorities, women, and economically disadvantaged Americans began to challenge the status quo.
The unelected, unrepresentative Republican majority on the court seeks to dominate the elected branches of government, which, when Democratic majorities win, seek to enact Democratic policies. By transforming the Constitution, they need not win policy debates or even elections. Their policy preferences are established by fiat by the Republicans on the highest court. The Voting Rights Act ceases to empower voters. Gerrymandering is permitted. Handcuffs are put on Congress to enact its will. A Republican president is given free reign to violate the law without accountability.
Contra John Roberts, the Roberts Court is forcing its policy preferences on the country. In this, the Republican Party seeks to replicate what Victor Orbán has done in Hungary. This judicial campaign is fundamentally undemocratic and does violence to our Constitution, especially to the Civil War amendments, which are abhorred by the MAGA Republican Party.
Americans have every reason to mistrust this court. Let's hope the country rejects the lawless Republican candidate for president, who stacked the court with loyal true believers, this fall.