Chief Justice Roberts falling short on recapturing Supreme Court legitimacy

Six months ago, GJR published “A citizen’s guide to a U.S. Supreme Court losing its legitimacy.” This  follow-up recounts recent ethics controversies and the leading decisions of this past term.)

After 18 years, Chief Justice John G. Roberts Jr.’s Supreme Court has the lowest credibility of any court in almost a century. The court’s standing has not been this low since FDR tried to pack the court after it struck down New Deal laws.

Credibility and legitimacy are the coin of the realm for the 68-year-old chief justice who could remain atop the court for another two decades or longer. He is quite likely to surpass the record 34 years that famous Chief Justice John Marshall guided the court from 1801 to 1835.

Roberts will be judged for how well he retained the court’s credibility at a time when a conservative majority of hard-right justices are gaining control and when sharp political divisions in society are pressure-testing the  machinery of democracy.

The chief justice is trying hard to defend the court’s legitimacy, but polls and legal commentary suggest he is falling short. 

New disclosures about lavish hospitality received by Justices Clarence Thomas and Samuel Alito have only made the chief justice’s defense of the court more difficult. He declined to appear before Sen. Richard J. Durbin’s Senate Judiciary Committee citing the importance of retaining a separation of powers between the branches of government. But critics accused him of dodging the ethics issue and say the highest judges in the land should have ethics standards at least as strict as other judges. Durbin’s committee voted 11-10 in July to advance a bill requiring the court to create an ethics code and a process for the public to file ethics complaints.

None of the disclosures about Thomas or Alito is likely to lead to them being forced from the court. Both are stubborn men who would not capitulate to public pressure. Nor are there the votes to impeach them or to pack the court with more liberal justices – a move that many think would just exacerbate the legitimacy problem. The Senate bill to require an ethics policy also won’t pass the House. And even if it passed, experts say the court would probably find it unconstitutional for violating the separation of powers.

Still the stories of lavish gifts have permeated the public debate about the court. 

The chief justice, who came on the court as one of the more conservative justices, is now positioned in the ideological middle of a court that has moved right.

The big dip in the court’s legitimacy came from the Dobbs vs. Jackson decision a year ago overturning Roe v. Wade and 49 years of precedents that had reaffirmed the constitutional protection of abortion as part of a woman’s privacy right. A Gallup poll after Dobbs showed disapproval of the court had risen to 58 percent, the highest in 90 years.

The Associated Press-NORC Center for Public Affairs Research found this year that confidence among women had crashed with just 12 percent of women saying they had great confidence in the court. As recently as 2018, that number had been 32 percent.

Roberts tried to head off Dobbs’ explicit abandonment of Roe. But he wasn’t able to persuade his most likely conservative ally, Brett Kavanaugh, to join him in a more moderate approach.

Kavanaugh joins Roberts in the middle

In the just completed term, the chief justice was more successful bringing over Kavanaugh in a surprising pro-voting rights decision from Alabama that upholds the Voting Rights Act’s consideration of race to keep states from minimizing Black voters by packing them into the fewest possible congressional districts.

Roberts and Kavanaugh also joined the three justices appointed by Democrats in rejecting the effort by southern states, including Missouri, to force the federal government to expel or lock up millions more undocumented immigrants whose only crime was crossing the border. Kavanaugh wrote that the states did not have legal standing to force the federal government to arrest more people than it had the capacity to incarcerate.

Kavanaugh, Justice Amy Coney Barrett and Roberts joined the Democratic justices in rejecting the so-called independent state legislature theory that would have allowed state legislatures to ignore state law in redistricting. The court held that the Constitution “does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.” Former President Donald Trump and his supporters who tried to replace Trump electors for Biden electors in decisive states in 2020 had favored the independent state legislature theory.

The lesson of these three moderate decisions is that the conservative majority that read the abortion right out of the Constitution will not always hold up in the most controversial cases.

Lee Epstein, the leading analyst of Supreme Court voting patterns and a former professor at Washington University, put it this way: “The data show a shift from the most conservative and aggressive court in modern history to one that has moderated. Perhaps the justices — especially Roberts, Barrett and Kavanaugh — have faced up to the public’s waning confidence and decided to self-adjust.” Epstein’s data analysis is in The New York Times.

Richard J. Lazarus, another former Washington University law professor now at Harvard, said Roberts seemed to have wrested control of the court back from Justice Clarence Thomas. “The chief rather than Thomas remains the most influential justice on the court in terms of the outcomes in the court’s opinions,” he said.

Stephen Vladeck, a University of Texas law professor, told the Washington Post’s Ruth Marcus: ‘the chief justice and Justice Kavanaugh and Justice Barrett are fairly conventional conservatives, what we might call Bush conservatives. And it ought not to be surprising that Bush-type conservatives are troubled by some of the especially envelope-pushing arguments that are being advanced by plaintiffs and some states in these cases.”

It also is notable that the Supreme Court has turned a cold shoulder to Trump’s false election claims and his challenges to criminal investigations. Also, bar disciplinary proceedings are punishing some of the lawyers who pitched his false claims in court.

Trump was so mad at the court last fall when he was forced to turn over his taxes that he told his followers to ignore the Supreme Court’s authority.

“The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body, with our Country paying the price. They refused to even look at the Election Hoax of 2020. Shame on

Them!”

More recently Trump has made political points in the Republican presidential primary by taking credit for having appointed the justices who overturned Roe.

Even if Trump’s justices on the court are not receptive to his extreme legal claims, some Trump judges in the lower courts have made questionable and much criticized decisions that serve to undermine the legitimacy of the federal courts.

 One Trump judge took the abortion drug off the market even though it had a long track record of safety. Another Trump judge tried to appoint a special master requested by Trump in the secret documents case. A third, on July 4, ruled in favor of Missouri and the Gateway Pundit in ordering that the federal government not to contact social media companies relating to constitutionally protected speech, even if it is wrong.

The first two of these decisions were quickly set aside. The third – recently put on hold by an appeals court – is based on what many First Amendment scholars think is a highly questionable legal theory that seems to interfere with the social media platforms First Amendment rights. 

Gregory P. Magarian, the Thomas and Karole Greene professor of law at Washington University, said on St. Louis Pubic Radio on July 10, that the Louisiana judge’s ruling limiting government contact with social media platforms was “very surprising.”

He continued, “it is a very sweeping and consequential order. And I don’t know of any precedent like this, where a court essentially told the government, you can’t even communicate with a speech provider of some kind to encourage or urge or give the government’s point of view about whether certain content should be available…

“It’s important to understand that this is a highly politically charged case and dispute. The attorneys general who are bringing these claims are uniformly Republican attorneys general, the judge, in issuing the order made a point of saying that the problem was censorship of conservative speech. And in his words, that was very telling. This has been a theme on the right for a long time that the conservative speech is being censored. It doesn’t really seem to occur to these concerned attorneys general…that some of the speech being excised from these social media platforms may actually be false, pernicious misleading, may present problems that the social media platforms of their own initiative would want to get off their platforms….

“If the government says, ‘Hey, anti Vax stuff on on Facebook is getting people killed. And Facebook says, Yeah, we agree. Thanks for bringing that to our attention. We think we should do something about that.’ That’s not a First Amendment violation that’s socially responsible intermediation of speech.”

Some liberal media and political commentators have suggested that it is a mistake to read too much into the cases where Roberts appears to have engineered a moderate outcome. Each of the opinions was hedged and they are outweighed, commentators say, by the final decisions of the term ending affirmative action in college admissions, overturning President Biden’s college loan forgiveness plan and protecting the speech of a Colorado web producer who had religious objections to being required to create websites celebrating the marriage of same-sex couples.

Two decades of conservative victories

In speeches defending the legitimacy of the Supreme Court, Roberts has said it is wrong to downgrade the legitimacy of the court based on the unpopularity of some decisions.

In an interview on C-Span a few months after the Dobbs decision, Roberts said, “I don’t understand the connection between opinions that people disagree with and the legitimacy of the court…You don’t want public opinion to be the guide to what the appropriate decision is….”

Most legal commentators agree that the court should interpret the Constitution, not try to win a popularity poll.

But critics of the Roberts court disagree with its legal approach. The court has tossed aside settled precedents and has delivered on a conservative political wish list involving abortion, affirmative action, voting rights, school desegregation, guns, religion, big money in politics and less deference to government regulation.

In addition, the majority of the justices now embraces originalism as the proper way to interpret the Constitution, basing decisions on the meaning of constitutional provisions when they were written and the historical traditions of the country at that time.

During the Warren court half a century ago, no member of the court was an originalist. Critics say the originalist approach freezes the Constitution to a historical tradition that protected slavery, limited democracy and equality and ignored women’s rights, which were nonexistent.

Even though Roberts has been pushing back against some moves to the right, he has engineered some of the most important conservative opinions of his court.

In a  2007 Seattle school desegregation case he said race should not be taken into account in school assignments, declaring, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” He reiterated that sentiment in his opinion for the court throwing out affirmative action admissions policies at Harvard and the University of North Carolina.

Civil rights lawyers were particularly incensed that Roberts cited Brown v. Board of Education as consistent with this colorblind approach to race. Thurgood Marshall, who argued Brown and was the first Black justice on the court, made it clear during his life that race had to be taken into account to undo the vestiges of segregation. 

Roberts also wrote the 2013 Shelby County v. Holder decision finding unconstitutional the part of the Voting Rights Act that required Justice Department preclearance for voting changes in the South. This is one reason that his decision this term to uphold another part of that law and rule for Black voters in Alabama was widely viewed as one of the term’s big surprises.

Roberts was part of the majority in Citizens United, the unpopular decision permitting unlimited corporate and union treasury money to be used to help elect candidates.

And he was in the majority of the court’s 2008 Heller decision to recognize an individual Second Amendment right to a gun, a decision that also reversed precedents extending back to the era of bootleggers in the 1920s. Justice Thomas has successfully expanded that right to the point that gun regulations are now considered constitutional only if there was an historical analogy in 1791.

The court may be rethinking that approach, however, because it agreed to hear a case next term where an appeals court threw out the federal law that bars guns for domestic abusers. Zackey Rahimi of Arlington Texas pushed his girlfriend to the ground during an argument in 2019, dragged her to his car, slammed her against the dashboard and then fired a shot in the air to scare off a bystander. The court may well have picked that case with such unfavorable facts to pull back from Thomas’ insistence on a historical analogy for gun regulation. There is no 1791 analogy to taking away guns from domestic abusers.

The Roberts court also has reversed the deference that its predecessor offered federal regulators. The “Chevron” deference that the court once extended to federal regulators has been replaced by a “major questions” doctrine that denies deference on controversial issues such as the environment and student debt relief, requiring instead explicit congressional authorization for the regulators’ actions.

LGBTQ+ rights

The one issue on which the Roberts court has moved in a progressive direction is in recognizing same-sex marriage, although that was over Roberts’ strong dissent. 

Dobbs undermined the legal underpinnings of the same-sex marriage decisions by cutting back on the constitutional protection of personal dignity and privacy. But the chief justice will almost certainly support same sex marriage as a binding precedent, so it is in no immediate danger of being overruled.

Still the court didn’t seem friendly to LGBTQ+ people in 303 Creative L.L.C. v. Elenis when it supported the free speech right of a Christian web designer who sought a court declaration that Colorado’s public accommodations law violated the First Amendment by forcing her to design sites for same-sex marriages that she opposed on religious grounds.

The 303 Creative case has a Missouri connection because the website designer, Lorie Smith, was represented by the Alliance Defending Freedom, a Christian legal advocacy group where the senior counsel is Erin Morrow Hawley, wife of Sen. Josh Hawley, R-Mo.

Ms. Hawley’s advocacy group was accused of misleading the court by suggesting that Smith had received a request from a gay man seeking a website for an upcoming marriage, when the man told the New Republic he never made the request and is married with a family.

Liberal critics have suggested Ms. Hawley should be sanctioned, but that is far-fetched. It seems the mythical web request had no effect on the case because it was a pre-enforcement challenge to allow a person to challenge a law without subjecting herself to committing a crime.

Still, the stories have contributed to the impression that the court was anxious to decide the case even though there was no indication that any actual person  had requested the service of Smith. The Supreme Court’s rejection of the Biden college loan forgiveness also has been criticized on these grounds because the court concluded that Missouri had standing to challenge the program based on its impact on MOHELA, a Missouri college loan servicer that had not challenged the Biden program.

Deciding cases where identifiable people are harmed is a basic tenet of American law and is embraced by both conservative and liberal authorities. It is part of judicial restraint to keep the courts from becoming too powerful.

Magarian said Monday that it was clear the court was anxious to decide the 303 Creative case. “Clearly, the Supreme Court wanted to decide this case, wanted to hand down this ruling. And so they sort of stormed through the barriers that that ordinarily kind of defined procedurally what they can do.”

Now, Magarian said, “there will certainly be instances of people coming out and saying, ‘Hey, we  provide an expressive service or an expressive good, we should be able to discriminate against African Americans, we should be able to discriminate against immigrants, we should be able to discriminate against women, we should be able to discriminate against Jews, or maybe against Christians or maybe against men.’”

Magarian has long criticized the Roberts court for being more solicitous of the well-heeled and powerful in First Amendment cases. As he has put it, “The court has put much more energy into expanding the free speech rights of politically or economically powerful speakers, while largely disdaining the First Amendment concerns of politically and economically disempowered speakers.

Conservatives point out that the court’s 303 Creative decision could theoretically protect the free speech of an LGBT web designer. If the hypothetical designer wanted to refuse to design a website for a socially conservative church, the designer could rely on 303 Creative to defend against the church’s claim that public accommodations laws ban discrimination against religion and require the designer to create the site.

The author of the website decision was Justice Neil Gorsuch who wrote a pro-gay rights decision in 2020 holding that the federal civil rights law banning sex discrimination protects people from discrimination based on  sexual orientation. For that reason, Gorsuch is not seen as hostile to gay rights.

Rip Van Winkle

Linda Greenhouse, the former Pulitzer-Prize winning Supreme Court reporter for The New York Times, recently suggested this thought experiment as a way to assess the Roberts court.

“Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

“To appreciate that transformation’s full dimension, consider the robust conservative wish list that greeted the new chief justice 18 years ago: Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.”

Greenhouse’s conclusion:  “By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.”

The legal landscape that Greenhouse paints is a daunting terrain for the chief justice’s uphill battle to recapture the court’s legitimacy by showing that the court’s decisions are based on law and not political preference.