Republicans are angry at Chief Justice John Roberts again. But they, as well as liberal lawmakers and activists who hail him as the Supreme Court’s swing-voting savior, both fundamentally misunderstand the nation’s most powerful jurist.
Those jeering from the right fail to see that Roberts is protecting his position as the best asset conservatives have in Washington. And liberals lulled into a false sense of hope that Roberts will protect the rights they value most could be in for a rude awakening if they don’t push legislative action to protect the rights they hold most dear — and elevate the Supreme Court as a key election issue.
The latest GOP jeers came after an order from the Court late last Friday rejecting a bid by a Nevada church to block state COVID-19 attendance restrictions, which impose tighter limits on churches than on businesses like casinos. Like most summary orders, the justices gave no reason for siding against the church, but Roberts joined the more liberal justices in the vote.
That spurred Republicans to pounce, blasting Roberts for failing to zealously guard what they view as religious rights.
Senator Ted Cruz of Texas tweeted that Roberts “abandoned his oath” and suggested that churches would be better served by the court if they “set up craps tables.”
Earlier the year, Roberts also joined the court’s liberals in turning aside abortion restrictions enacted in Louisiana, citing court precedent. Senator Josh Hawley of Missouri threw down a new gauntlet. “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley told The Washington Post. “By explicitly acknowledged, I mean on the record and before they were nominated.”
Trump explicitly made Roberts’s vote an election battle cry, tweeting: “Wow! Win in 2020!”
But ironically, the Republican ire gives Roberts political cover to be the conservative he has long shown himself to be.
“Because what he wants people to do is think the court is a nonpolitical institution that isn’t beholden to the Republican Party,” said Tom Goldstein, a veteran Supreme Court practitioner and cofounder of the SCOTUSblog website. “So weirdly, the more he is attacked for not advancing their agenda, the more he accomplishes one of his goals. He cares enormously about the institution and how it’s perceived, and about its legitimacy.”
And by careful managing of the public’s perceptions and expectations of the court, Roberts can lead it through a tumultuous election year, with plenty of time to spare in his still-young tenure to steer the court firmly to the right.
A close look at last week’s vote by Roberts, along with other votes he cast with the liberal justices of the court this term, reveals no leftward shift in the chief justice’s jurisprudence, but rather what appears to be a knack for avoiding political firestorms and biding time to bring his true judicial conservatism to bear.
Yes, he was the deciding vote that kept Trump from nixing the Obama-era Deferred Action for Childhood Arrivals order, or DACA, protecting young “Dreamers” from deportation. But only on a technicality, ruling simply that Trump didn’t follow statutory rules governing how to dismantle the program.
He declined to give Trump blanket immunity against subpoenas from House Democrats and New York prosecutors seeking the president’s tax returns and other financial documents. But in the process, Roberts narrowed the scope of lawmakers’ ability to act as such a check on the executive.
He sidestepped attempts by his fellow conservative justices to add gun rights to the docket and restrict abortion rights, but those issues remain teed up for a less politically fraught moment in the future when the right cases appear. Roberts has already made clear what side he’ll be on when he’s ready to cast substantive votes on those issues, as well as votes on voting rights, affirmative action, and immigration.
“He is a dyed-in-the-wool conservative,” said Melissa Murray, a constitutional law expert at New York University School of Law. His carefully cast votes, she said, “give John Roberts more cover to be conservative.”
That means progressives who want long-term protection of reproductive rights, voting rights, and gun control shouldn’t confuse the GOP’s impatience with Roberts as victory. The onus lies on Democrats to roll up their legislative sleeves — and be as effective as Republicans have been in convincing voters that the control of the Supreme Court is a crucial campaign issue. Because when Roberts has enough political cover to be his true ideological self, progressives will likely no longer be cheering.
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