John Roberts gets it wrong. Again.
The Chief Justice’s end-of-year message omitted the most serious threats to judicial independence, and attempted to lay blame on others while ignoring his own role in eroding that independence.
John Roberts, the Chief Justice who oversaw the Supreme Court’s loss of legitimacy, wrote an end-of-year letter claiming that it’s the court’s critics, not the court, who lack legitimacy. This is Chief Justice John Roberts as Pontius Pilate, washing his hands clean of the crucifixion of American democracy.
The heart of his argument is that judicial independence is a cornerstone of our freedom. Yes, this is an unassailable truth, but one that Roberts himself seem to have forgotten. He then lists four threats to judicial independence. I will discuss them below. But first, we need to talk about the very big thing he simply ignores.
What Roberts ignores
John Roberts wants to protect the independence of a court that has already been captured. Republican efforts to gain control of the Court have never been a secret. Before he was on the Court, Justice Powell warned American business that they had a “neglected opportunity in the Courts.” That was in 1971. At Powell’s urging, the Chamber of Commerce and wealthy individuals began to fund organizations that would successfully reshape the court. Working with them were Republican leaders who not only supported their efforts but saw in them a strategy to radicalize voters. They turned the unpopular effort by big business to capture the court into a partisan political effort by using images of fetuses to make abortion into a major public policy issue. Meanwhile, in the United States Senate, Republicans focused on packing the judiciary. They were so intent on this goal that they refused even to give a hearing to Democratic President Barack Obama’s nominee when there was an opening on the Court, effectively changing the Court’s size for a year. Finally, Roberts himself contributed to the capture of the court in his Citizens’ United ruling that opened the door to unlimited dark money in politics. The Federalist Society’s resulting use of such money transformed the entire federal judiciary. Roberts now presides over a court that was won by the Republican Party and its wealthiest donors for the purpose of achieving by Opinion what they could not by legislation.
To cement the court’s power to rule via Opinion, Roberts himself sabotaged voting rights through a series of rulings that effectively brushed aside the Voting Rights Act. Gerrymandering? First the Court said it would no longer hear cases about partisan abuses that disenfranchise voters. Then it said that racial gerrymandering was just fine there was some plausible claim of a political reason for it. So, the Chief Justice who now writes to us about judicial independence is the same Chief Justice whose opinions mean it is legal to deny black voters equal representation if they might vote for Democrats.
Roberts has nothing at all to say about these decades-long efforts to undermine judicial independence. His attempts to sidestep this sordid story rely on his claim that we mortals are not equipped to understand the Court’s judicial reasoning. And I grant him that the law is not always easy to grasp. So, let’s consider the court’s actions, not just its opinions. Because we all do understand bribery. We understand ethical lapses. Under Roberts’ watch, Court members are allowed to take expensive gifts from folks who fund the organizations determined to capture the Court, folks who also have interests before the court. That does not pass anyone’s test for independence. On Roberts’ watch, Justices are allowed to display partisan sympathies in the most flagrant ways and then still participate in cases that effect the outcome of elections. Then there are Robert’s decisions on when to hear cases. This election year, Roberts rushed the cases where the outcome could benefit Republicans and Mr. Trump, for example the Colorado 14th Amendment case. At the same time, he decided to slow walk cases that might have a different outcome, for example the Trump immunity cases. Even those of us who have not spent years wearing robes can see what is going on here.
What Roberts distorts
Now, let’s turn to the handwashing, where the Chief Justice wants to clear himself of overseeing the fall of the Court’s independence by pointing to continued threats to the idea of independence.
He describes four. Violence and intimidation are the first two. Roberts is right to worry about this. But he quickly turns a legitimate worry into something else. He writes:
Public officials, too, regrettably have engaged in recent attempts to intimidate judges—for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations," he wrote. "Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.
Sorry, your honor. Your tin ear to credible bases for these allegations does not mean those bases aren’t very real indeed.
But intemperance does lead to political violence. So let’s take a minute to look at this problem. Rachel Kleinfeld is senior fellow in the Democracy, Conflict and Governance Program at the Carnegie Endowment for National Peace. In a recent piece published in the Journal of Democracy, she writes,
Two subgroups appear most prone to violence. The January 2021 American Perspectives Survey found that white Christian evangelical Republicans were outsized supporters of both political violence and the Q-Anon conspiracy, which claims that Democratic politicians and Hollywood elites are pedophiles who (aided by mask mandates that hinder identification) traffic children and harvest their blood; separate polls by evangelical political scientists found that in October 2020 approximately 47 percent of white evangelical Christians believed in the tenets of Q-Anon, as did 59 percent of Republicans.
If the Chief Justice is serious about ending the threats to judges, whether those on the Supreme Court or those judging elections, he needs to understand the fact pattern. He might also ask himself how much his Citizens’ United opinion contributes to political violence and intimidation. We know that much of the dark money in politics is spent on radicalizing negative attack ads. Roberts opened that spigot in 2010. Since then, we have seen a steep rise in terrorist incidents in the US.
Roberts also warns that “threats to defy lawfully entered judgments” threaten the Court’s independence. Here again, Mr. Roberts selective memory colors his complaint. Back in 2021, Roe v. Wade was the lawfully entered judgment of the Supreme Court. That hardly mattered in Texas, where Governor Abbot signed into a law a vigilante bill that allowed Texans to track down their neighbors and stop them from receiving abortions. The Supreme Court heard a case that asked the Court to stay the implementation of this law pending appeal. The Court seemed to agree that the law’s enforcement mechanism was deeply flawed, but nonetheless refused the stay. Here was Mr. Roberts’ opportunity to speak out against nullification. Instead, he went all in.
Finally, the Chief Justice worries about social media and disinformation. Here too, his own actions contributed to the problem. The Court took up a case when the Biden Administration met with social media companies and complained that they were spreading misinformation about public health during the COVID pandemic. This was an opportunity for the Court to come down on the side of facts instead of the side of disinformation. Instead, they took a pass and claimed the plaintiffs lacked standing. But Mr. Alito took the opportunity to write that the majority, "permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear and think." This rant isn’t coming from any jurisprudence; it is a fully partisan talking point, and one that legitimizes the very disinformation the Chief seems to worry about.
The Chief Justice’s end-of-year message omitted the most serious threats to judicial independence, and attempted to lay blame on others while ignoring his own role in eroding that independence.
I know this was a long post, and if you made it this far, thank you. As this new year begins, I plan to call out right wing lies for what they are. I plan to push back on the old narrative that some folks are destined to rule over the rest of us whether they are billionaire oligarchs or a captured and self-aggrandizing Supreme Court.
Happy New Year.
#Supremes