THE BLOG
09/12/2014 03:19 pm ET Updated Dec 06, 2017

Chief Justice Roberts' Bait and Switch

2014-09-09-Robertsoath6.jpg
"I have no agenda," John Roberts declared to Senator Hatch in 2005. Testifying before the Senate Committee on the Judiciary, Roberts assured the Senators that he would be "a modest judge." If confirmed, Roberts promised to adjudicate with humility, fairness, and self-restraint.

The Senate, of course, confirmed Roberts. Yet Roberts' record as Chief Justice is far from modest. Over the past nine years, the Roberts Court has eviscerated campaign finance reform, limited women's health care, restricted voting rights, and eroded environmental protection. To achieve its conservative ends, the Roberts Court has spurned decades of precedents.

After joining the Supreme Court, Justices often evolve. John Roberts regressed. The commitments that Roberts made to the senators and the American people do not accord with his voting record as Chief Justice. Ultimately, every coup of Roberts' conservative crusade comes with a broken promise.

Workers' Rights

The architrave of the Supreme Court's western façade is engraved with a simple statement: "Equal Justice Under Law." In his confirmation hearing, Roberts vowed that all Americans would have equal justice before his Court. He spoke about providing "justice without regard to persons, to rich and to poor" and a "level playing field" for all parties. President Bush's nominee dismissed claims that he would vote against workers' rights as "wrong" and highlighted "[ruling] against corporations on a regular basis on the D.C. Circuit." Later in his testimony, he posited, "sometimes the Constitution is on...[the poor] person's side and not on the side of the corporation with the fancy printed brief."

Chief Justice Roberts has a fondness for those fancy printed briefs, apparently. In 2013, three constitutional law professors published an article in the Minnesota Law Review, which examined the Court's pro-business drift since the 1940s. They found that Chief Justice Roberts sided with corporate litigants at a rate greater than every other Justice who served over the past 65 years, excluding Justice Alito. The Roberts Court's other conservatives (Justices Kennedy, Scalia, and Thomas) also favored business litigants at exceptionally high rates. Other studies have reached similar conclusions, ranking the Roberts Court as the most pro-business Court since the Lochner era of 1897-1937.

The Supreme Court does not exist in a vacuum. Real people are harmed by this Court's corporatism. Just ask members of labor unions (14 Penn Plaza LLC v. Pyett). Or the victims of oil spills (Exxon Shipping Co. v. Baker). Or the low-wage workers of Wal-Mart (Wal-Mart v. Dukes). Or any American who wishes to participate in politics without a super PAC (Citizens United v. FEC; McCutcheon v. FEC). In the rarefied halls of the Supreme Court, Roberts is not only forgetting his promises to the Senate; he's forgetting about working Americans.

Roberts' pro-business activism has another consequence, one that is both subtle and important. In his confirmation hearing, Roberts spoke at length about the "important role" of stare decisis in the legal system. He promised to be "constrained by the precedents" and rightfully observed that following precedent promotes "evenhandedness, predictability, stability, the appearance of integrity in the judicial process." Nine years later, the Roberts Court seems to be only constrained by the wish list of the Chamber of Commerce. It routinely ignores precedents that favor workers. In some cases (think Gross v. FBL Financial Services), Roberts and the other conservatives are remarkably candid about flouting past decisions. In others (think Citizens United and McCutcheon), Roberts et al. obfuscate their disregard for precedent in the language of judicial restraint. Either precedent matters or it does not. Roberts said it did to win confirmation; his voting record now says something entirely to the contrary.

Voting Rights

In Roberts' confirmation hearing, Senator Kennedy asked the nominee if he believed that "the right to vote is a fundamental constitutional right." Roberts channeled Earl Warren, answering in the affirmative:

[The right to vote] is preservative, I think, of all the other rights. Without access to the ballot box, people are not in the position to protect any other rights that are important to them. And so I think it's one of, as you said, the most precious rights we have as Americans.

Later in his testimony, Roberts discussed his commitment to voting rights as a young lawyer. In that capacity, he supported Attorney General Smith's position that "the protection of the right to vote was critical, [and] that the Voting Rights Act had been extraordinarily effective in preserving that right and should be extended."

As Chief Justice, Roberts has treated the most precious of rights with disdain, if not outright contempt. He sided with a 6-3 majority in Crawford v. Marion County Election Board (2008), which upheld Indiana's onerous voter identification law. Voter identification laws, like Indiana's, block many disadvantaged Americans from participating in elections. Roberts also wrote the 5-4 majority opinion in Shelby County v. Holder (2013), which decimated the Voting Rights Act. Following Shelby, many states and jurisdictions approved regressive laws that keep poor Americans, disproportionately from communities of color, from the polls.

Women's Rights

"Gender discrimination is a serious problem," Roberts contended in his Senate testimony. He discussed the enduring influence strong women in his life -- notably his three sisters, his wife, and his daughter- and argued that they should have equal citizenship and opportunities.

He even upset some pro-life groups by with moderate comments on abortion rights. In his words, Roe v. Wade "is settled as a precedent of the court, entitled to respect under principles of stare decisis." Roberts also defended Casey v. Planned Parenthood, which upheld the principal holding of Roe. According to Roberts, Casey "is, of course, itself a precedent that would be entitled to respect." Discussing the Court's abortion jurisprudence, Roberts rightly observed that, "it is a jolt to the legal system when [a Justice] overrule[s] a precedent. It is not enough that [the Justice] may think that a prior decision [like Casey] was wrongly decided."

Ironically, Roberts himself jolted the legal system, with Gonzales v. Carhart (2007). At the urging of President Bush, Congress passed the Partial-Birth Abortion Act in 2003. The Act banned intact dilation and evacuation, an abortion procedure often necessary to protect women's health. In Gonzales, Roberts and four other male, Republican appointees upheld the law. Justice Ginsburg wrote a powerful dissent, and noted the Gonzales majority opinion flagrantly disregarded the undue burden test of Casey, as well as the broad principles of Roe and other cases in the Court's abortion jurisprudence.

Commerce Clause Jurisprudence

Defenders of the Chief Justice point to his vote to uphold the Affordable Care Act (ACA) as an example of his judicial modesty and restraint. John Roberts safeguarded a law of which he was not fond, they argue, and thus protected the Court's legitimacy. In their minds, his decision was consistent with the promises Roberts made in his confirmation hearing.

Actually, no. In his opinion to uphold the ACA, Roberts curtailed the scope of the Commerce Clause and uprooted two relevant precedents, Wickard v. Filburn (1942) and Gonzales vs. Raich (2005). When asked by Senator Schumer about those two cases in his conformation hearing, Roberts affirmed both:

[The] Raich case ... is a precedent of the court, just like Wickard, that I would apply like any other precedent... I have no agenda to overturn it. I have no agenda to revisit it. It's a precedent of the court.

Roberts may have saved the ACA, but he did so in a narrow, conservative manner that limited the scope of the Commerce Clause. There is a reason many liberals called the Roberts' decision in NFIB a "pyrrhic victory;" Roberts restricted the power of the federal government to help working families. Simultaneously, he violated his commitment to not "revisit" Wickard and Raich.

Conclusion

Roberts' record is troubling in its own right. But it is even more troubling when contrasted with the promises he made to the Senate, and the American people, in his confirmation hearing. On the issues covered in this article and others (including immigration, gun control, and environmental protection), Roberts' record and testimony are irreconcilable. In a constitutional democracy with judicial life tenure, demanding candor as the price of confirmation hardly seems unreasonable.