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Chief Justice Roberts and the Right-Wing Majority's True Colors

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When John Roberts came before the Senate in 2005 for confirmation as Chief Justice of the United States Supreme Court, many scribes penned encomiums to this undeniably conservative, but seemingly eminently reasonable and restrained judge. Writing in the New Yorker, Hendrick Hertzberg expressed concerns about Roberts views once he reached the high court. But he also allowed that Roberts was "not, it appears, a hater; nor is he even a particularly rigid ideologue. Unlike Justices Scalia and Thomas, Roberts does not project a sense of resentful beleaguerment."

Roberts, of course, worked assiduously to cultivate that image, famously insisting during his opening remarks before the Senate that he was merely an umpire calling balls and strikes and enforcing the rules of the game, not making them up. Then-Senator Biden did point out to Roberts that different umps had different strike zones and it was fair to ask Roberts a little bit about what his was. Roberts, an evidently highly intelligent and polished man, sailed through those hearings.

All of this, mind you, was obvious BS even at the time, to anyone paying attention. As I wrote during the confirmation hearings:

"Roberts' career is characterized not so much by a generalized fealty to judicial restraint, but to a highly selective version thereof, one that consistently favors powerful interests over the less advantaged and that appears consistently to advance the preferred conservative agenda of the day. According to [a report by the Alliance for Justice]: "one can discern that Judge Roberts holds a troublingly limited view of the federal government's authority to enact key worker, civil rights and environmental safeguards and a similarly troublingly narrow view of the vital role of our courts and our government play in safeguarding our individual rights, especially civil and women's rights....these views, taken together, could produce a government with less power to protect ordinary people and give ordinary people less power to protect themselves from abuse by government and other powerful interests."

This is, of course, precisely who Roberts has turned out to be. In order to arrive at yesterday's opinion, which the seasoned legal observer Paul Campos described as a "travesty... of basic legal reasoning," Roberts had to create a new legal doctrine out of whole cloth. The Chief Justice insisted that the portions of the Voting Rights Act struck down yesterday violated the "fundamental principle of equal sovereignty of the states." The eminent jurist Richard Posner responded by saying "this is a principle of constitutional law of which I have never heard" because, in fact, "there is no such principle."

As many have pointed out, now is an especially disturbing time to claim that, because we have made so much progress over the past half century, proven mechanisms for ensuring voting rights are no longer necessary. In fact, over the past few years, we have seen a new war on voting pushed by right-wing activists and legislators all over the country. The transparently dishonest justification for these laws is the need to rein in voter fraud and ensure the integrity of the voting process. Voter fraud, of the sort that defenders of these new laws insist must be stopped is, as has been well-established, virtually non-existent. On the eve of last year's presidential election, John McCain's former campaign manager, Steve Schmidt, described voter fraud claims as "bogus" and part of the Republican Party's "mythology." The actual purpose of such legislation is, of course, to make it much more difficult for African Americans and other less favored groups of people to vote -- because when they do, they vote overwhelmingly Democratic. Sometimes, those pushing these laws are honest about their motives. When Pennsylvania passed a particularly problematic voter ID law last year, the House Majority leader of the Pennsylvania House, Mike Turzai, didn't declare triumphantly that Pennsylvania could now ensure integrity in its elections. Instead, to wild cheers from his cronies, he thundered that the legislation had just successfully delivered the state to Mitt Romney (much of the law was later tossed out and, of course, Romney did not win Pennsylvania).

In fact, the toner cartridge was barely dry on Roberts' execrable opinion yesterday when several states announced that previously blocked voter suppression laws would go into force immediately, including in Texas -- where hundreds of thousands of voters might now be adversely affected -- and Mississippi.

Writing in the Nation, Ari Berman rightly denounced the Court's right-wing majority in a post yesterday titled, "What the Supreme Court doesn't understand about the Voting Rights Act." And in the piece itself, Berman quoted from Justice Ginsburg's dissent -- "The sad irony of today's decision lies in its utter failure to grasp why the VRA has proven so effective." The sentiments are understandable -- and in Ginsburg's case, perhaps professionally prudent -- but the premises are wrong. The right-wing majority understands precisely how the VRA has been effective. That is why they gutted it. There is no misunderstanding, no well-intentioned but misguided application of the law. They are neither dumb nor naïve. They are merely without conscience. When Chief Justice Roberts extolled the progress of the past fifty years in justifying his decision to try to undermine that progress, the irony should have been lost on no one, since the conservative movement has worked ceaselessly to try to roll back and reverse that progress. (Remember Trent Lott, former Senate Majority leader, lamenting in 2002 how much better things would have been if Strom Thurmond's vision of a segregated America had prevailed?)

As Adam Serwer wrote yesterday, Roberts has worked hard to avoid being painted with that brush. Serwer reminded readers that during oral arguments in February in the Shelby v. Holder case -- the one the Court ruled on -- Scalia blurted out that the Voting Rights Act represented the "perpetuation of racial entitlement." One needs to step back for a moment to appreciate just how extraordinary and revealing that statement was. Roberts himself appears to have been a determined opponent of the VRA since he was a young lawyer in the Reagan Justice Department in the early 1980s (so much for his claim that the long passage of time now provides a justification for gutting the law). But Roberts doesn't project an air of "resentful beleaguerment." And just as it's become a favored trick of the contemporary right to pretend to admire Martin Luther King while trying to undermine everything he stood for, so the clever and cunning Roberts knew enough in his Shelby opinion to pretend to extol the virtues of a law he has long wanted to bury. He's tried to put a "moderate" face on what has been a consistently extremist agenda, but it's that agenda, including rolling back civil rights protections to the maximum possible extent -- that animates Roberts and his cronies' jurisprudence (and see Rick Hasen's discussion about why Roberts thought it might be politically prudent to hold off on killing affirmative action for the time being). Emily Bazelon, in Slate, described Roberts as a "stealth conservative" who has successfully concealed his political agenda. That gig should have been up before he ever reached the high court.

But yesterday should have removed the last shred of doubt. Roberts is a Stepford judge -- the tip of the spear of the conservative movement's three decade long march through the judiciary -- a robotic ideologue ceaselessly committed to undermining legal protections for the vulnerable while further stacking the deck in favor of the already-powerful. There's no principle here -- no respect for judicial restraint, or original intent or limited government or any of the other nonsense by which right-wingers try to defend their judicial "philosophy." Only a remorseless attack on common decency for the sake of enriching and empowering their ideological allies.