Fear And Loathing At The Supreme Court — What Is Chief Justice John Roberts Up To?
STEVE INSKEEP, HOST:
In this country, what are the motivations of the man who runs the Supreme Court?
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JOHN ROBERTS: We'll hear argument this morning in case 18-966 - the Department of Commerce v. New York.
INSKEEP: John Roberts commonly calls cases to order and is also a vital player as justices decide how to rule. He recently infuriated the president with one of his rulings. He wrote a 5-4 decision blocking a citizenship question on the 2020 Census.
NPR's Nina Totenberg has been talking with people who observe the chief justice.
NINA TOTENBERG, BYLINE: What was he thinking? That's the question. For some conservatives, the chief justice's vote in the Census case was another original sin, much like his vote in 2012 to uphold key provisions of Obamacare. Some even called for Roberts' impeachment. Curt Levey, president of the conservative Committee for Justice, doesn't go that far. But...
CURT LEVEY: What it means is that having a conservative majority on the court is still a dream rather than a reality.
TOTENBERG: And yet, even Levey concedes that Roberts has been a reliable conservative vote on the court, the census case being the only 5-4 case this term in which he voted with the court's liberals. If liberals were relieved that Roberts recognized that the administration's justification for adding the census question was essentially a lie, they were infuriated by Roberts' other major opinion. Writing for himself and the court's four other conservatives, the chief justice slammed the door shut on court challenges to extreme partisan gerrymanders. The decision will allow some state legislators unfettered discretion to draw congressional and state legislative district lines so as to entrench their own political power. It isn't just liberals who've pushed for some court supervision of extreme partisan gerrymandering.
CHARLES FRIED: There's no doubt there's an agenda here.
TOTENBERG: Harvard Law professor Charles Fried served as solicitor general in the Reagan administration. But he and other Republican former officeholders filed a brief on behalf of those challenging extreme partisan gerrymanders. Alluding to Roberts' famous confirmation hearing comment that the job of a judge is not to bat for one side but to call balls and strikes, Fried had this to say.
FRIED: This is not balls and strikes. This is a long-term, shrewdly played but persistent program to get the law out of anything to do with elections.
TOTENBERG: Fried catalogs Roberts' decisions in this regard. He wrote the court's 5-to-4 decision striking down the Voting Rights Act, a law passed and reenacted repeatedly by large and bipartisan congressional majorities. He wrote or participated in a series of decisions striking down longstanding and newer limits on campaign contributions. These and other decisions, however, are not enough to satisfy Roberts' conservative critics, who view him as something of a traitor - mainly for the Obamacare and census decisions.
Again, Curt Levey.
LEVEY: He often does appear like he's very focused on his legacy and on being popular rather than on doing what a judge should do. All the pressure from the mainstream media and the establishment is to move left.
TOTENBERG: Others have a different explanation. Josh Blackman is a constitutional law professor at Southwest (ph) College of Law Houston.
JOSH BLACKMAN: I think Roberts is motivated by some sort of Solomonic dogma, that in any given case of high note that the correct decision is one where he splits a proverbial baby.
TOTENBERG: Of course, chief justices, Republican and Democrat alike, have uniformly believed that they have a particular duty to maintain public confidence in the court as an institution. For instance, in 2000, then-Chief Justice Rehnquist wrote the opinion upholding a decision he had long reviled, the decision that, 34 years earlier, required police to warn criminal suspects of their rights. And in the 1930s, Chief Justice Charles Evans Hughes worked hard behind the scenes, on the court and off, to prevent Franklin Roosevelt's court-packing plan.
Today Chief Justice Roberts faces similar threats - a president who openly and repeatedly castigates judges in partisan and even ethnic terms; and Democratic presidential contenders who make a different case. They argue that Republicans, by refusing for nearly a year to consider President Obama's Supreme Court nominee, have so stacked the deck that the number of justices on the court should be expanded by statute if the Democrats take control of the Senate.
As some who know Roberts observe, while these kinds of proposals are still in their relative infancy, the chief justice cannot ignore the alarm bells. He knows that if the court moves too far to the right and too fast, those bells will only ring louder.
Nina Totenberg, NPR News, Washington.
[POST-BROADCAST CORRECTION: In the audio of this story, as in a previous Web version, we incorrectly refer to the South Texas College of Law Houston as the Southwest College of Law Houston.]
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