This was John Roberts’ plan all along

Maybe John Roberts is getting uneasy that the American people are onto him.

“I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do,” he told a conference of lawyers and judges in Pennsylvania. “We’re not simply part of the political process.”

It was certainly an interesting week for the chief justice to express his befuddlement that so many Americans see Supreme Court justices as politicians wearing red and blue robes. For one thing, the rest of the conservative supermajority was off message. Justice Neil Gorsuch was busy telling right-wing podcaster Megyn Kelly that young conservatives need to have the conviction to live their values. Just a couple weeks ago, Justice Clarence Thomas delivered a speech that compared progressives to Hitler.

Also, as Roberts spoke, GOP state legislatures across the South were racing to dismantle congressional districts currently represented by Black members of Congress across Tennessee, Alabama, Louisiana and South Carolina, slicing and dicing cities and counties and attaching them to white, rural swaths hundreds of miles away. 

This immediate erasure of Black political representation — soon to become the largest since the death of Reconstruction — was the predictable result of the Court’s party-line decision last week in Callais v. Louisiana, the latest in a series of cases that eviscerated the Voting Rights Act. The decision will also create a massive reallocation of political power in the U.S. House, all of it headed away from Democrats and toward Republicans. 

Roberts is a savvy political operator. He arrived at the Court from chief justice central casting, the Brooks Brothers-dad-next-door, and ever since his 2005 confirmation hearings, he has framed himself as a sensible midwestern institutionalist, an umpire calling balls and strikes. Roberts understood that it would be easier to enact his reactionary agenda if he could maintain the illusion that the Court functioned above the grubby influence of partisan politics.

That framing charmed most Democratic senators, Supreme Court reporters and law professors for decades. But it has curdled with the American people, who see clearly how the strike zone changes on the most important questions based on which party benefits electorally. Roberts is no umpire. He has, patiently and strategically, shifted the nation and the Constitution dramatically to the right on voting rights, immigration, the regulatory state, reproductive rights, gun control and executive power. 

Republicans needed the courts to enact this ultra-conservative agenda precisely because it could not be won at the ballot box. The Voting Rights Act, after all, was reauthorized nearly unanimously by a Republican Congress and president, George W. Bush, in 2006. But they concurrently placed Roberts and Justice Samuel Alito on the bench to slowly erode it from within, a crime with no political fingerprints. And so they embarked on a decades-long quest to capture the courts. 

This wasn’t very hard. It’s easier, after all, than winning state legislatures and then gerrymandering Congressional maps — though Republicans thought of that, too. This math is easier. There are only nine justices. Win five seats and you have the last word on nearly every question in American politics. 

This project was not secret; it unfolded in the open. Republicans and the justices themselves have celebrated it at Federalist Society galas. But of course, in this moment of triumph — a moment in which public confidence in the Court has plunged to historic lows, and major reforms have growing, majority support — Roberts wants to pretend that the justices aren’t political actors at all, just umpires divining the Constitution’s original intent and meaning.

We do not have to swallow this. Not when five of the six members of the conservative supermajority served in Republican administrations. Not when three of the six Republican-appointed justices, including Roberts, worked on behalf of George W. Bush in Bush v. Gore. Not when Donald Trump proved his conservative bona fides by promising to select justices from a pre-approved list of names vetted by officials at the Federalist Society and the Heritage Foundation. Not when just last month the New York Times published stunning memos from Roberts and other justices showing how clearly politics and personal opinion shaped the Court’s “shadow docket” decision to pause President Barack Obama’s signature environmental measure.

And certainly not when we see how the conservative legal movement operates in unison with Republican donors, politicians and activists.

Just look at Shelby County v. Holder, the 2013 case that marked the Roberts Court’s first shot at the VRA, which froze its most useful enforcement mechanism. Wealthy donors on the right, centered around a little known but staggeringly powerful organization called DonorsTrust — often called the right’s ATM — helped fund, along with other major conservative foundations, the organization that developed the Shelby County case and identified the plaintiffs. Then they covered the seven-figure legal fees for the Supreme Court case. They also funded the Federalist Society, which helped vet the judges who decided it, and supported the conservative law professors who generated theories, legal concepts and amicus briefs. 

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But if we are to believe the chief justice, there’s nothing to see here. Just law. Not power. (Gorsuch and Justice Amy Coney Barrett did join the Roberts hymn to note the number of unanimous cases the Court still decides; this ignores what’s obvious in statistics and to anyone with their eyes open — that on the most important cases, with the clearest partisan consequences, and certainly almost down the line on questions of voting and elections, the Court divides on largely partisan lines.)

Almost two decades ago, a Roberts decision put an end to voluntary school desegregation plans in Seattle and Louisville. The chief justice declared that the way to end racial discrimination was to stop discriminating based on race. Likewise, if Roberts doesn’t want the Supreme Court to be seen as a bunch of partisan hacks, perhaps they could stop behaving as partisan hacks.

That, of course, is not what he wants. Ever the shrewd tactician, Roberts wants to impose out-of-the-mainstream, hyperpartisan and deeply unpopular decisions on the public and have them be accepted as objective, inevitable readings of law, rather than a decisive political verdict that people cannot change handed down by ideologues in red robes. He wants to lead a tribunal of nine that operates above our system of checks and balances rather than as part of it. He wants to pretend that the Court’s authority has been shattered because the public disagrees with their tough decisions, not because the institution has been stacked in a manner unbefitting a democracy in order to deliver them. 

Most importantly, he pretends the Court is above politics and power because he does not want us to use our power to reform it and bring an arrogant body back into line.

But there is much that can be done. This Court can be enlarged. Justices could be term-limited. Justices for individual Supreme Court cases could be chosen at random from a large pool of federal judges. Justices could be unable to time their retirement and have a lifetime replacement selected by a president of their own party. Congress could limit the Court’s jurisdiction once again. Congress controls the Court’s budget: If it wanted, it could remind the Court of its station by moving it from its grand location across from the Capitol into a suburban office park in Takoma Park, Maryland, or Vienna, Virginia.

“The most important thing for the public to understand,” Roberts told C-SPAN in 2009, “is that we’re not a political branch of government. They do not elect us. If they do not like what we are doing, it’s more or less just too bad.” 

Our best hope is that his longest-lasting legacy will be that Roberts has shown everyone that the Court is emphatically a partisan, political institution, and that Americans have a responsibility to reform a Court that has become an enemy of democracy and voters alike.