In thinking about the Supreme Court, I'm reminded of the scene from this week's episode of Game of Thrones where Tywin Lannister asks the next king, who will absolutely be killed before the season is over, what makes a good king. The boy struggles to get to the correct answer: wisdom.
For Chief Justice John Roberts, who is like the Queen Mum of the Supreme Court, wisdom isn't enough; it usually comes down to legacy. There have only been 17 chief justices in the history of the court, and some are certainly better than others. John Marshall was influential in laying the groundwork for stare decisis and judicial review, Harlan Stone brought the court into the modern commercial world with the International Shoe decision, Earl Warren steered the ship of civil rights cases in the '50s and '60s, and Warren Burger stood up for the system of checks and balances and against executive-branch malfeasance. Naturally, John Roberts' legacy has already been discussed because he is the first chief justice of the social media era. I contend that much like that of Chief Justice Stone, Roberts' legacy will be one of modernization of the Supreme Court, and it happened again this week in Schuette v. Coalition to Defend Affirmative Action.
In Schuette the question was whether or not voters could opt out of a program that considers race as a factor in admissions to public colleges and universities. The 6-2 decision, with Justice Stephen Breyer joining the conservative group, upheld citizens' right in this particular matter.
Despite Justice Sonia Sotomayor saying this is tantamount to stacking the deck against minorities, the numbers simply do not bear out the necessity for affirmative action anymore. Since 1985 the percentage of black high-school graduates attending college has gone up from 40 percent to 55 percent, with Hispanic students seeing a similar increase. Most of this increase occurred in the 1990s as a direct result of affirmative action, but it's insulting to say these students would not have gone to college anyway. They might have gone to a lower-ranked college, but some argue that that might actually help minority students by choosing the best school for them, not simply the best school they get into.
But more importantly, this decision has shown the willingness of the Roberts court to take a new look at the data and update jurisprudence for the 21st century. It's important to note that this had nothing to do with the constitutionality of affirmative action, just the constitutionality of not allowing affirmative action.
This was at play in the much-maligned Citizens United and McCutcheon decisions, where the Roberts court recognized the changing nature of political speech, which is no longer relegated to the flag burnings and sit-ins of the '70s. More importantly, since both cases came after 2008, the Roberts court recognized that the money being spent in politics had increased so much in spite of the McCain-Feingold Act and the aggregate spending limit, so the justification simply was no longer there. Stare decisis requires the court to look back at precedent, but it doesn't require the court to ignore the present. Both cases came after the 2008 election, where the first presidential candidate since Richard Nixon to spurn public financing, Barack Obama, raised more than $650 million, and the entire election cycle saw over $5 billion spent.
The same can be said for the Shelby County decision, where the Roberts court invalidated the outdated math of Section IV of the Voting Rights Act. Mind you, they didn't ban preclearance; they merely said that using 1950s data for 2014 enforcement is wrong. They also looked at states like Georgia and Indiana, where minority voting increased after voter ID laws were passed. Why they turned out is wholly irrelevant to the fact that they weren't prohibited from turning out. Once again, the Roberts court established its legacy of looking at the present, not the past, when deciding on the propriety of laws.
Unfortunately, the Roberts court is still stuck in the past on criminal protections, as seen in the Fernandez decision.
The true test of Roberts' legacy will be how he guides the court on the eventual NSA spying cases, which will come before him in the next few years. Ideally, Roberts will mold the rulings in the same vein as Shelby, looking at the reality of spying, technology, and civil liberties in 2014 and beyond, not to how the court ruled in the 1980s. Otherwise, we could be faced with drones flying overhead and the NSA listening to every call, because the founders only had a vague notion of what electricity is, let alone a global telecommunications network.