The Roberts Court Must Change Direction
John Roberts, when he was nominated to the Supreme Court, was one of the leading members of the Supreme Court bar, but future historians will probably not regard him as a great Chief Justice. When he was appointed, conservatives hoped that he would join Antonin Scalia and Clarence Thomas and be part of a solid phalanx of Justices committed to interpreting the Constitution according to its original understanding, and that, like them, he would be committed to a judiciary that left legislating and policy-making to the other branches of government. In short, it was hoped that he would be a Justice who understood that Courts were not to be legislators. This understanding is not absent from Roberts’s jurisprudence, and has manifested itself, for example, in his opinions regarding race, single-sex marriage, and a few other issues.
Unfortunately, there seem to be some values that Roberts now embraces that may seem to him more important than originalism. In particular, Roberts is gaining a reputation as a “minimalist,” as a Justice who seeks not to interfere in the work of the other branches, and as an “institutionalist,” who is concerned with preserving the prerogatives of the judicial branch, and, in particular, shielding it from political attack. It is widely believed, for example, that Roberts’s lamentable decision in NFIB v. Sebelius, 567 U.S. 519 (2012) (the “Obamacare” decision) upholding that Act because he feared that if the Court found the Act unconstitutional it would create a “firestorm” that would make the ruckus over Bush v. Gore, 531 U.S 98 (2000) (when the Court, in effect, declared George W. Bush winner of the 2000 Presidential election) look tame.
There has been speculation that Roberts voted with the Court’s three Democrat appointees (Stephen Breyer, Sonya Sotomayor, and Elena Kagan)) last fall to deny a hearing in the case brought by Texas and 16 other states challenging the Constitutionality of Pennsylvania’s alteration of its election laws by state judges and state officials rather than by the state legislature, because he feared threats that the Democrats, if they achieved majorities in the House and Senate and won the Presidency, would “pack the court” with additional Democrat judges.
A similar motivation may be attributed to Roberts’s similar decision, after the election, to vote with the three Democrats and also with the new Justices Bret Kavanaugh and Amy Coney Barrett, again to deny a hearing in the challenge to Pennsylvania’s officials, which was to be heard after the election.
The plurality opinion in Bush v. Gore (written by the then Chief Justice Rehnquist, and concurred in by Justices Scalia and Thomas) made clear that the Constitution permits only the state legislature to alter the rules regarding the selection of Presidential electors, and thus there is no doubt that the Court should have rebuked the Pennsylvanians. While it is unclear whether such a ruling would have affected the outcome of the election in Pennsylvania (much less the Presidential election itself) the point is an important one, and it is difficult to believe that the rule of law governs in this country, if the Supreme Court refuses to enforce the Constitution. While it may be an overstatement, there was still some merit in Sidney Powell’s comment on the Court’s behavior. She called it “an absolute tragedy for the Rule of Law, the future of what was a Republic, and all freedom-loving people around the world.”
Ms. Powell, who was counsel in one of the cases involved, went even further and stated that “The Supreme Court’s failure to date to address the massive election fraud allegations and multiple constitutional violations that wrought a coup of the presidency of the greatest country in world history completes the implosion of each of our three branches of government into the rubble of a sinkhole of corruption.” One doesn’t have to agree completely with these sentiments still to be worried about whether our Congress now has no restraints on its legislative abilities, and our President’s actions may or may not be upheld depending on the political preferences of particular reviewing judges, or an all-powerful and entrenched federal bureaucracy (what President Trump used to refer to as the “deep state.”)
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Conrad Black, one of our most astute pundits similarly condemned the Supreme Court (and by implication Justice Roberts) for its “cowardice,” and in particular declared that “That abdication of the Supreme Court over the motion of the attorney general of Texas supported by 16 other state governments was the court’s worst failure since the infamous Dred Scott decision of 1857, which helped bring on the Civil War.” He is not alone in this belief. My friend, Garrett Sheldon, who often writes on this site, has also concluded that only the Supreme Court is capable of righting the imbalance in which we currently exist.
I do believe that there are cogent reasons for a fair-minded observer to conclude that there were massive irregularities in the 2020 Presidential election that call for independent investigation, an investigation that is now unlikely to occur. There is now only a slim hope that future such abuses will be avoided, and that we will be able to maintain confidence in the fairness of our elections. That hope may be realized if the Supreme Court rules sensibly in a case now before it – interpreting the Voting Rights Act – in which it has the opportunity to clarify, at least, what measures states may take, such as voter identification laws and measures barring “ballot harvesting,” in order to ensure election integrity. If the Court abdicates its responsibility in that case, we may well have reached the fatal point at which popular sovereignty and the rule of law are both lost.
By: Professor Stephen Presser
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and the author of Law Professors: Three Centuries of Shaping American Law.