THE BLOG
07/03/2013 03:09 pm ET | Updated Sep 02, 2013

With Liberty and Justice for ... Some

Come 2016, if the Republican Party wants a presidential nominee who is politically brilliant, strategically adroit, ultra-conservative yet fooling some observers into thinking he's a moderate - and has a good-looking family to boot -- there's a surprisingly obvious candidate.

Supreme Court Chief Justice John Roberts has put to shame every other politician in the public sphere with his deft maneuvering as leader of the high court. Justice Antonin Scalia prefers to lash out acerbically at those who oppose -- and therefore offend -- him rather than seek consensus. Justice Samuel Alito seems more focused on scoffing at and patronizing colleagues with whom he disagrees. But Roberts has cultivated a public image as a less-than-right-wing zealot, while actually amassing a record certain to excite members of the Chamber of Commerce and Tea Party alike.

Commentators have started to note the Roberts M.O. of planting the seeds of far-right and far-ranging opinions years before ultimate decisions come down, often wiping out decades of progressive gains in civil rights, worker rights or equal rights. The New York Times' Adam Liptak labeled the chief justice "a canny strategist with a tough side, and his eyes on the horizon."

The latest term brought some good news for the advancement of equality, primarily by way of the Court's two marriage equality decisions. But we need to look at that good news in context. When we do so, we find that the Roberts Court is hardly a tribune for individual rights and equality under the law for all.

The most devastating blow to achieving full equality under our laws came in the form of the opinion in Shelby County v. Holder, where Roberts, joined by Justices Scalia, Alito, Anthony Kennedy and Clarence Thomas, invalidated a major enforcement provision of the landmark Voting Rights Act. The text of the 14th and 15th Amendments provides promises of liberty and the authority for Congress to ensure that liberty. The 14th Amendment says no state shall deprive people of liberty without due process and the 15th Amendment says no citizen shall be denied the right to vote because of race. Both of the amendments contain clauses stating, "Congress shall have power to enforce" the amendments by "appropriate legislation." The last time Congress reauthorized the VRA, during President George W. Bush's administration, lawmakers created a voluminous record showing that certain states and localities continued to be the primary offenders of racial discrimination in voting. And overwhelming majorities in both chambers supported the reauthorization.

But in Shelby County, the high court's conservatives took an aggressive activist approach, concluding they knew better than Congress, invalidating the formula used to decide what states and localities should be required to receive federal government approval before changing their voting laws or procedures. The conservative justices took an incredibly sunny, though out-of-touch, view of racial equality in the United States and determined that so much good has occurred that it was now time to arrest the federal government's ability to enforce a law aimed at preventing discrimination in voting.

"When confronting the most constitutionally invidious form of discrimination and the most fundamental right in our democratic system, Congress' power to act is at its height," Ginsburg wrote in dissent.

Ironically, Justice Scalia -- just one day after overruling Congress' clear and seemingly constitutionally authorized work on voting rights -- harshly criticized the Court for rejecting the so-called Defense of Marriage Act. "We have no power under the Constitution to invalidate this democratically adopted legislation," declared Scalia. "It is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive." Such brazen hypocrisy when it comes to constitutional interpretation.

This term also perpetuated a trend of limiting access to the courts for individuals, often to the great benefit of corporate interests. Professor Lee Epstein recently told the New York Times, "We shouldn't lose sight of the court cementing its legacy as the most pro-business court in the modern era."

In this term, the conservative justices supported a boilerplate clause crafted by American Express to bar consumers from bringing class action arbitration claims alleging antitrust violations. That decision follows the Court's 2011 AT&T v. Concepcion opinion authored by the conservative justices that again shut down class actions alleging corporate malfeasance.

The conservative majority didn't stop there. The conservative bloc dealt significant blows to workers seeking to combat workplace harassment and discrimination. In Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, the conservative justices found roads to safeguard employers from employment discrimination complaints and legal actions alleging harassment. Justice Ginsburg, lodging a dissent in Vance, blasted the majority for failing to understand the realities of the workforce.

What we can't fail to understand is that the Roberts Court, after nearly a decade, has solidified into a business-friendly tribunal that all too often gives short shrift to honest constitutional interpretation, individual liberties and equality. The Court's drift rightward provides a strong example of the need for a diverse federal bench, and also why courts matter so much.