May09

electoral-vote.com

Dem 47

   

GOP 53

Legal News, Part II: John Roberts Is Living in a Bubble

We suppose that we are, on some level, sympathetic to Chief Justice John Roberts. The people he interacts with most regularly are undoubtedly his family and his law clerks, and neither are likely to share many "hard truths" with him. His five right-wing colleagues probably share his view of the Court, and his three left-wing colleagues are presumably very collegial and/or are ignored. Whenever Roberts gives a talk, or does a media hit, or something like that, he surely deals with people who are very deferential. After all, that's the Chief Justice of the United States Supreme Court. There have been 45 presidents in U.S. history, but only 17 chief justices.

The point here is that Roberts lives in a bubble. And, as we have observed many times, the only curative to that is to actively, and consistently, take steps to try to break through the bubble, at least a little bit. Barack Obama, for example, ordered his staff to select half a dozen negative letters sent to the White House each week, for him to read so that he could stay in touch with people unhappy with his rule. Roberts does not seem the type, and the comments he offered up earlier this week make us even more confident that he's happy to live in his (very thick) bubble. Here is what he said:

I think at a very basic level, people think we're making policy decisions, [that] we're saying we think this is what things should be as opposed to this is what the law provides. I think they view us as truly political actors, which I don't think is an accurate understanding of what we do. I would say that's the main difficulty. We're not simply part of the political process, and there's a reason for that, and I'm not sure people grasp that as much as is appropriate.

We have been unable to find video of the remarks, or any comment about how the crowd responded. It was a legal conference, so we imagine the eye-rolling was... substantial.

Roberts is not Donald Trump. So, we do not feel that such an obviously incorrect assessment can be attributed to stupidity or cognitive decline. The Chief Justice is surely aware of the following, to take just a few examples:

• That then-Senate Majority Leader Mitch McConnell (R-KY) committed gross abuses against precedent, logic and voters' intelligence in order to move heaven and earth and seat two Republican justices.
  
  
• That all of the controversial decisions of this term, and the last one, and the one before that, end up with a conservative majority and the liberals (plus sometimes one, lonely conservative) in the minority. This is true in particular with the decision gutting the Voting Rights Act, the one overturning Roe, and the one making Trump into a king.
  
  
• That this Court is very much in the habit of ruling through the shadow docket, which shrouds its decisions in shadow and mystery. And that there are some partisans who are given extremely preferential treatment when it comes to getting their cases on the shadow docket (Hint: Not Joe Biden).
  
  
• That some of Roberts' fellow conservatives are pleased to wade right into politics, with verbiage that would even make some members of Congress blush. Just a few weeks ago, to take one example from among many, Associate Justice Clarence Thomas delivered a speech in which he excoriated progressivism as a threat to America.

This is not an exhaustive list, and undoubtedly each reader could add their own exemplars.

We spent a fair bit of time thinking about exactly how Roberts could convince himself of something so obviously counterfactual, and here are the ideas we came up with:

• Obviously, the Roberts Court does not practice politics in the same way as the elected politicians do. They don't campaign, they don't make promises to voters, and they don't exactly make sausage (though some of the debates over court decisions come close to this). There is actually a pretty substantial literature about how justices tend to see themselves as "above" politics because they don't do the exact same things the elected politicians do; the term that is used is "self-aggrandizement."
  
  
• The Roberts Court is undoubtedly very collegial to each other behind the scenes. This gives at least a veneer of civility and of cooperative effort. (Though it should be noted that at least a couple of the liberals are clearly, and openly, growing tired of Samuel Alito.)
  
  
• The Roberts Court often issues unanimous, or near-unanimous, decisions. These are usually on things that aren't especially political, though.
  
  
• The Roberts Court sometimes pushes back against Donald Trump.

There may be a little more going on, beyond this. But we suspect we are largely on the mark here.

In the end, though, the most important thing is not whether the Court actually has become politicized. And the most important thing is certainly not what John Roberts thinks. The most important thing is that there is a broad perception the Court has become politicized. As we have written many, many times, the Court's authority is based almost entirely on the confidence that private citizens and public officials have in it. SCOTUS commands no troops and has no other means of enforcement at its disposal. And if there is no faith in the Court, then its decisions will be ignored outright or, more commonly, will be honored in letter, but not in spirit.

And there is simply no question that confidence in the Supreme Court is at a low point, perhaps as low as it's ever been. We obviously don't have polling for, say, 1857 (right after Dred Scott), but there's always some large minority that approves of the Court just because they like the decisions. If there HAD been polling in 1857, the 35% of white Americans who lived in the South, plus some chunk of white Americans who were Northern Democrats (Black people would not have been interviewed by pollsters back then) would have approved of the Court, maybe putting their figure in the mid-40s or high-40s. By contrast, right now, the Court's approval is around 42% in Gallup's ongoing poll. It dropped to that level, the lowest since Gallup began tracking at the start of the 21st century, right after Roe was overturned, and it's stayed there since. Some pollsters have it even lower; the worst is probably The Economist/YouGov, which has SCOTUS at 35% approval.

It all leads back to an argument we've now made many times: John Roberts is going to go down as the worst chief justice in history. First, he's overseen some very problematic and unpopular decisions. He's also allowed the process to be abused to the point of being a mockery of justice, most obviously by the shadow docket. He's proven unwilling or unable to do anything when decisions leak prematurely (as with Dobbs), or when his colleagues engage in obviously corrupt behavior (as with Clarence Thomas and his RV). And finally, Roberts is in denial about all of it, and telling everyone that if they think the Supreme Court is politicized, the problem is that they just don't understand. That's no answer to the problem, and every day that Roberts keeps his head in the sand is another day that the reputation of his Court deteriorates just a bit more. (Z)