Saving SCOTUS’s Credibility And The Rule of Law
In September 2005 George W. Bush appointed John G. Roberts, Jr. as the Chief Justice of the U.S. Supreme Court. At that time, I thought that Justice Roberts had the ability to become the most outstanding Chief Justice in the history of the Court. He was and is exceptionally intelligent having graduated summa cum laude from Harvard College and magna cum laude from Harvard Law School where he served as the Managing Editor of the Harvard Law Review. His legal experience was equally impressive. He began his legal career by serving as the law clerk for Judge Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit and later as a clerk for Chief Justice William Rehnquist. That was followed by nineteen years in the private practice of law during which he served as an appellate advocate arguing scores of cases in state and federal courts including an astounding 39 cases before the U.S. Supreme Court. He then served on the U.S. Court of Appeals from 2001 to 2005 when he was appointed as a justice of the U.S. Supreme Court. Later that same year he was appointed as the Court’s Chief Justice following the death of Justice Rehnquist. At the time he became the Court’s 17th Chief Justice, he was still only 50 years of age giving him ample time to shape the future direction of the Court and the nation’s federal judiciary.
In spite of the outstanding qualities Chief Justice Roberts brought to the Supreme Court, the Court’s credibility has become suspect in recent years as partisan politics has invaded the Court’s decision-making processes. That, in turn, is undermining confidence in the nation’s entire judicial system and casting doubt as to whether America can remain a nation in which the law is paramount. It will require the Chief Justice to draw upon his considerable intelligence, experience and persuasive talents to right this situation. This is because the Supreme Court now has six Justices who are products of the Federalist Society which was formed to recommend the appointment of judges groomed to support the political agenda of the Republican Party. How our nation got to this point is explained below.
Article III of the U.S. Constitution provides for the creation of the federal judicial system and confers upon each federal court judge and Supreme Court justice a life-time appointment with the intent that he or she will not be beholden to any person or group of persons and can dispatch justice in the best interests of the nation. This notion of an independent judiciary, however, began to erode in the 1960s. At that time Earl Warren, a Republican, was then serving as the Supreme Court’s Chief Justice. Although Warren had been well-regarded by the members of both of the nation’s principal political parties at the time of his appointment, that changed when he led the Court in a series of decisions upholding the efforts of the Kennedy and Johnson administrations to end racial segregation and to expand the nation’s welfare systems, efforts which his party had been opposing.
Warren’s perceived betrayal of his fellow Republicans helped trigger the creation of “the New Right” described in my article entitled “Partisan Politics” which devised and began implementing a strategic plan that would enable Republicans to regain and maintain control of the federal government. Among the key elements of that plan was the creation of the Federalist Society, a not-for-profit organization, the mission of which was to identify, train and recommend candidates for appointments to the federal judiciary. Although the Society’s website calls for the improvement in the quality of justice through the application of “conservative judicial principles”, in reality the Society’s mission was to facilitate the appointment of jurists who would further the political agenda of the Republican Party by being responsive to the interests of wealthy individuals and corporations. Since its inception in 1980, the Society has prepared literally hundreds of attorneys to serve as federal judges. In fact, every current Justice of the U.S. Supreme Court (including Chief Justice Roberts), as well as hundreds of U.S. District and Circuit Court judges nominated by Republican presidents during the last thirty years has been trained and recommended by the Federalist Society.
It’s important to understand the difference between conservative political principles and conservative judicial principles. The former relates to substantive political and economic policies that protect individual freedoms, assure the civil rights of individuals and promote economic growth. The latter encompasses procedural rules intended to guide the courts in rendering fair and predictable rulings that uphold, insofar as is consistent with the U.S. Constitution, the legal principles that the nation inherited from British Common Law (essentially 400 years of decisions of the British courts), the statutes enacted by the U.S. Congress and the Rules and Regulations adopted by the nation’s many regulatory agencies.
Under conservative judicial principles the Supreme Court generally does not even consider a case until the issues involved in it have been explored by multiple appellate courts and there is a conflict in the decisions of those courts. A second basic principle is adherence to the doctrine of stare decisis (Latin: “to stand by previous decisions”) under which prior decisions of the Court should be followed except in highly unusual circumstances. A third principle of judicial conservatism is that the Court should issue its decisions on the narrowest available ground, leaving other related issues to be decided at a later date after they have been thoroughly vetted by the lower courts. Conservative judicial principles also dictate that the courts should seek to uphold the intentions of the legislature in enacting statutes as determined from a review of their legislative histories including the debates within the legislature leading to the statute’s enactment. Lastly, those principles caution the courts to tread lightly when overruling statutory provisions recognizing that legislatures are far better equipped than the courts to determine when statutory remedial action is necessary and how that remedial action should be framed.
Prior to 2014 appointments to the federal judiciary were subject to two limiting factors: (a) the Senate’s filibuster rule which required the vote of at least 60 senators to confirm the nomination of a judicial appointee and (b) the Senate’s “blue slip” process which effectively gave a veto over a judicial appointment to the senators representing the state in which a judicial nominee was to serve. These procedures tended to eliminate objectionable judicial nominees and, as a result, the vast majority of judicial appointees were confirmed by votes of over 90 senators engendering widespread public confidence in the non-partisan character of the nation’s judicial system.
The erosion of the courts’ reputation for being non-partisan began in the 1980s when President Reagan sought to appoint Robert Bork as a Supreme Court Justice. Bork was a conservative attorney and law school professor who had previously served as the U.S. Solicitor General, the Acting Attorney General and a judge on the D.C. Circuit Court of Appeals. Despite an impressive legal resume’, Judge Bork was best known for having carried out the request of President Nixon to fire Special Prosecutor Archibald Cox who was then leading the “Watergate” investigation. This action (commonly referred to as “the Saturday Night Massacre”) was taken by Bork after the then Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus had refused to do so. This stain on Bork’s otherwise exemplary reputation led to his rejection by Senate Democrats. From that time on judicial nominations began to take on a decidedly political flavor and confirmation hearings became more contentious.
This trend accelerated after the Supreme Court’s decision in Bush v. Gore in which the Court ruled that the vote count in the State of Florida (which determined the outcome of the 2000 presidential election) should be terminated at a point when it favored the election of George W. Bush. The Court’s opinion contained a number of dubious contentions and concluded with a statement that it should not be relied upon in any subsequent case, essentially excluding the Court’s reasoning from the sacred principle of stare decisis. This decision underscored the political importance of the power to determine who should occupy judicial positions, a key facet in the political strategy of the New Right.
The importance of political leanings of nominees to the federal judiciary was further highlighted during the presidency of Barack Obama when Senator McConnell caused Senate Republicans to delay or filibuster over 70 judicial nominees. Previously, the filibuster had only been used no more than a handful of times to block a president’s judicial appointments. This unprecedented use of the filibuster prompted Senate Democrats, in frustration, to modify the rule to exclude its application to confirmation proceedings involving U.S. District and Circuit Court nominees. Senate Republicans also refused to even consider President Obama’s nomination of Merrick Garland to fill the vacancy on the Supreme Court created by the sudden death of Justice Scalia even though that left a vacancy on the Court for over a year.
Further heightening the partisan conflict over judicial appointments, Republicans during the Trump administration further amended the filibuster rule to exclude its operation with respect to Supreme Court nominations. This facilitated President Trump’s appointment of three Supreme Court Justices with few, if any, Democrats voting in support of those nominees. It’s not that Trump’s Supreme Court nominees were blatantly unqualified. It’s just that by this time the Court was starting to play a very large role in shaping the nation’s laws. That came both as a result of Congressional gridlock limiting the role of the Congress and the Court’s own abandonment of the conservative judicial principle requiring courts to uphold the intentions of the nation’s legislatures insofar as possible.
The increasing importance of the role being played by the nation’s courts can also be seen in the actions of the U.S. Senate during the Trump administration. In the four years that Donald Trump served as President Senator McConnell, in his role as Senate Majority leader, set aside all other Senate business in order to put through the confirmation of over 225 other federal court nominees, all of whom bore the approval of the Federalist Society and over a dozen of whom were deemed “unqualified” by the American Bar Association, a stain which had previously been considered fatal to any judicial nomination.
Chief Justice Roberts, understanding the importance of preserving the Court’s reputation as an unbiased arbiter of legal disputes, has long and frequently contended that the Court is composed of nine individuals who are devoid of political bias and who go about their work in a collegial fashion. This contention has been belied by the fact that on average over the past 15 years, 76% of all 5-4 Supreme Court decisions were split along ideological lines. One need only read a few dissenting opinions of Justice Sotomayor to obtain an unvarnished view of the actual level of collegiality that currently pervades the Court. Accordingly, such protestations by Chief Justice Roberts seem less like those of an impartial observer and more like those of a skilled advocate who won 25 of his 39 cases before the Supreme Court. The sad fact is that the Chief Justice, himself, has played an important role in advancing the political agenda of the Republican Party to achieve and maintain control of the federal government.
Perhaps the Chief Justice’s principal contribution to the Republican political agenda was his 2010 opinion in Citizens United v. Federal Election Commission in which the Court, in contravention of the doctrine of stare decisis, overruled not one but two of its prior decisions involving the 1971 Federal Election Campaign Act. The impact of this decision was to enable corporations to make previously outlawed contributions to political campaigns and to publish their own communications related to contested elections. The removal of these restrictions greatly enhanced the symbiotic relationship between the Republican Party and its wealthy donors as more fully described in Partisan Politics.
The Citizens United decision was egregious not only because it overturned settled law but also because it enabled corporations to sway the results of elections even though they are not entitled to vote and are required by statute to act in the best interests of their shareholders (who might include foreign nationals) with no duty to act in the interests of the nation. Indeed, the Citizens United decision gave no credence to the fact that Congress in enacting its campaign financing restrictions on several prior occasions dating back to 1907 had determined that permitting corporations to participate in the electoral process was not in the interests of the nation. The only explanation for this decision is that it was critical to the strategic plan of the Republican Party to construct an institutional framework for maintaining control of the government.
Similarly egregious was the Court’s 2013 decision in Shelby County v. Holder in which the Chief Justice also voted with the majority. This decision deemed unconstitutional Section 5 of the Voting Rights Act of 1965 which required states (principally southern states) with a history of suppressing voting by minorities to obtain the approval of the Department of Justice before making any changes to their voting laws. Section 5 had been critical in preventing the type of abuse that had characterized elections throughout the South prior to the adoption of the Act. The Court premised its decision on the fact that this provision only applied to those states with a history of voter discrimination and not to all states. The Court also concluded that Section 5 was no longer necessary as a long period of time had passed since its enactment. In reaching this latter conclusion the Court ignored that Section 5 had been extended by the Congress as recently as 2006, had been instrumental in preventing numerous restrictive voting provisions in the recent past and that there was no evidence from which to conclude that the offensive practices would not be resumed in its absence. In fact, it was only a matter of days following the issuance of the Court’s decision that southern states began adopting new restrictions on voting directed at minorities. Like the Citizens United decision, this decision was critical to the Republican Party’s ability to win elections in states that anchored the Party’s plan to maintain control of the federal government.
These are not the only decisions by the conservative majority on the Court that further the politically partisan agenda of the Republican party. The Court’s handling of the cases brought by the Manhattan District Attorney and the House Ways and Means Committee in an effort to obtain copies of the tax returns of President Trump wreak with political partisanship. There was never any real question that President Trump’s tax returns would have to be turned over to the plaintiffs. That issue had effectively been decided when the Court had required President Nixon to comply with the subpoenas in furtherance of the “Watergate” investigation. Accordingly, both the District and Appellate Courts in Washington, D.C. and New York had little hesitancy in requiring the production of the subpoenaed Trump documents. These decisions were rendered in the fall of 2019. Through a series of judicial maneuvers, however, the Court managed to make sure that the potentially explosive subpoenaed documents would not have to be made available to the public until well after the November 2020 election.
While Republicans have always emphasized that they want their judicial nominees to apply conservative judicial principles, they have shied away from characterizing their judicial appointees as being politically motivated. That changed with the Presidency of Donald Trump. Before Trump was even elected he promised to appoint judges that would overrule Roe v. Wade and declare the Affordable Care Act unconstitutional, both politically charged subjects. In addition, when Trump’s early efforts to prevent immigration from Muslim countries were blocked by the courts, Trump immediately blamed the adverse decisions on judges appointed by Democrats and vowed to appoint judges who would support his political agenda. Thus, Trump made it clear not only that did he believe the idea of judges without political bias to be a fiction, but that he expected his judicial appointees (as well as his Department of Justice) to be no less partisan than his party’s representatives in the Congress. This alarming attitude, however, cannot simply be attributed solely to a president with authoritarian predilections as no Republican member of the Senate or the House of Representatives has ever contradicted President Trump’s statements as to how judges do and should act.
From his public statements it’s clear that Chief Justice Roberts recognizes that the rule of law depends upon the nation’s citizenry having confidence in the impartiality of its judicial system. Once the courts become a tool for carrying out the political agenda of a governing party, faith in the rule of law will evaporate and democracy will die. This is what happens in authoritarian countries like Russia and China where political dissidents are routinely convicted of crimes on baseless charges. In her recent book entitled “Blowout”, Rachel Maddow (paraphrasing a quotation of Oscar R. Benavides) described this phenomenon in relation to the Russian government as follows: “For our friends, everything; for our enemies, the law.” Trump’s blatant acknowledgement of his party’s politicization of the federal judiciary has thus placed pressure on the Chief Justice to try to refute that notion in order to preserve the notion that the United States is still a nation of laws. His not-so-subtle efforts to make the Court appear non-partisan have been apparent in two recent decisions.
The first came at the end of the Supreme Court’s 2020 term when Roberts caused the Court to reject a Louisiana statute enacted in an effort to overturn Roe v. Wade. I described this decision in an article I wrote last July. In a very real sense Justice Robert’s decision was a masterful display of judicial legerdemain. That’s because it involved his taking a position that was in direct conflict with the position he had taken in an earlier case involving an identical Texas statute. When the earlier case had been decided, the Court consisted of five conservative justices and four liberal justices. In that case Justice Kennedy departed from his conservative colleagues and had voted with the liberal justices to declare the Texas statute unconstitutional. Chief Justice Roberts had voted with the remaining three Republican appointed justices to uphold the statute. By the time the case involving the Louisiana statute came before the Court Justice Kennedy had been replaced by Justice Kavanaugh whose earlier decisions on the D.C. Circuit Court revealed that he harbored strong antagonism toward abortion rights.
Had the Chief Justice voted as he had done in the Texas case, Roe v. Wade would have been overturned in 2020 and abortion services would no longer be available in the roughly 30 states controlled by Republicans. This could have easily unleashed a firestorm of civil unrest rivaling, if not exceeding, the protests following the murder of George Floyd. The Chief Justice’s solution for avoiding the inevitable widespread civil unrest was to vote with the Court’s four liberal justices on the grounds that the doctrine of stare decisis required him to follow the Court’s prior decision. It should be noted that his four conservative colleagues on the court did not feel constrained by that doctrine, nor had he felt so constrained by it when he wrote the opinion in the Citizens United case. In short, the Chief Justice simply came up with a rationale (and a rather suspect one at that) to prevent the Court from issuing an obviously politically explosive decision.
The Chief Justice’s task of keeping the Court from appearing blatantly politically partisan has now been complicated by the addition of Amy Coney Barrett to the Court, giving the Court’s conservatives justices a 6-3 advantage over its liberal justices. This means that Roberts acting alone can no longer alter a politically biased decision by his conservative colleagues on the Court. He faced that issue recently in the case of California v. Texas in which the constitutionality of the Affordable Care Act was again placed before the Court. The ACA, which was enacted in 2010, has enabled roughly 28 million Americans to obtain health insurance and declaring the Act to be unconstitutional (as three of his colleagues had been appointed to do) also might have unleashed a firestorm of pubic unrest and possibly destroyed what remains of the Court’s credibility as a politically unbiased tribunal.
From its very enactment the ACA had been demonized by Republican politicians because (a) it entails governmental expenditures to benefit the nation’s poorest citizens and (b) it imposes a variety of taxes on companies in the healthcare field as well as wealthy individuals to fund those expenditures. A measure of the Republican antipathy toward the ACA can be seen in the fact that during President Obama’s presidency House Republicans passed no fewer than seventy bills seeking to repeal the Act. These were largely meaningless efforts as President Obama would surely have vetoed any such bill that was passed by both the House and the Senate. Instead, these efforts were intended to excite Republican voters who through conservative media had been led to believe that the ACA was leading the nation down the path to socialism. Not able to rescind the ACA through Congressional action, Republicans took their fight into the courts. While they were successful in causing the Supreme Court to chip away some of the ACA’s important provisions, the principal features of the Act had survived.
When President Trump was elected the Republicans again tried to repeal the ACA, while promising to replace it with something better. That effort also failed when Senator McCain cast a deciding vote against the Act’s repeal. McCain’s “No” vote, however, didn’t prevent the Republicans from adopting legislation undermining the ACA’s “individual mandate” under which every American was compelled to purchase health insurance. That action set the stage for the Republicans’ third attempt to have the U.S. Supreme Court declare the ACA unconstitutional. It proceeded on the theory that the Court’s first decision upholding the ACA was premised on the Congress’ power to tax; and since the tax underlying the individual mandate had been repealed, there was no longer a constitutional basis for the Act. Even though this action had been brought by twenty Republican-controlled states, it was patently specious because the ACA was financed through a variety of taxes, not just the tax that promoted compliance with the individual mandate.
By the fall of 2019, this suit had been upheld by a Texas District Court and had been affirmed in part and reversed in part by the 5th Circuit. The 5th Circuit had ruled that only the individual mandate (which had already been undermined by legislation) was unconstitutional and that all of the Act’s other provisions should remain in force. In December 2019 both sides appealed to the Supreme Court. Oral argument of the case, however, did not take place until after the November 2020 elections, an unusually long delay. This was ostensibly because of the COVID pandemic. A more skeptical view would be that the Chief Justice simply didn’t want to air the oral argument in such a politically charged case before the elections. While most decisions of the Court are rendered within approximately three months after the oral argument, the decision in this case was not issued for another seven months. This is somewhat strange considering the fact that the Court simply ruled in a 7-2 decision that the plaintiffs lacked judicial standing to assert a claim because, as states, they weren’t adversely affected by the statute.
What could have taken so long to render a decision in a case of such dubious merit? Equally puzzling is why the Court based its decision on a procedural issue that apparently had not even been considered by the lower courts. The obvious answer seems to be that the Chief Justice, dating back to his pivotal vote in the 2012 decision upholding the Act’s constitutionality, had decided that it would be political suicide for the Court to strike down a statute affecting the physical and fiscal well-being of 28 million Americans. Since his conservative colleagues on the Court were largely on record as opposing the constitutionality of the Act, he had to come up with an acceptable rationale for disposing the case and then to convince one or more of them to take a position that might offend the President and Senators who had placed them on the Court. The latter was not a small feat in an era in which political partisanship is raging and when the President that appointed three of the Court’s conservative justices has a history of publicly denigrating the reputations of those who he deems to have been disloyal.
For those same reasons, the Chief Justice’s ongoing crusade to uphold the credibility of the Court will not be easy, especially considering there is now a two-vote imbalance between its conservative and liberal justices. This means that the Chief Justice acting alone can no longer neutralize the political biases of his conservative colleagues. Equally daunting is the fact that the next twenty-four months should bring a tidal wave of politically- charged cases as the Department of Justice begins to attack the new laws restricting voting adopted in over a dozen states controlled by Republicans as well as the gerrymandered redistricting efforts of those states. That will be followed by a second wave of politically-charged cases challenging the results of the 2022 elections. It will be a monumental task to conceal the Court’s current politically partisan nature in resolving these cases. In large measure, however, the Chief Justice only has himself to blame because he was instrumental in the Citizens United and Shelby County decisions that were critical in leading to the Court’s current predicament.