John Roberts’ Last Word Is Not the Final Say

As another acrimonious U.S. Supreme Court term ended, Chief Justice John Roberts wanted the last word. In the penultimate paragraph of the last announced decision — in which a conservative 6-3 majority struck down President Joe Biden’s loan forgiveness program — he spoke his mind.

“It has become a disturbing feature of some recent opinions,” he wrote, “to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” Insisting that the Court’s conservative majority was acting in good faith and applying the law faithfully, he concluded: “Any such misperception would be harmful to this institution and our country.”

When a chief justice expresses larger views on the Court, there is often a lot to unpack. But this expression of concern seemed unusually defensive for a chief justice who stands solidly in the center of a right-lurching Court.

Attacking the Court for overstepping its limited judicial role was a hallmark of the conservative legal movement for the 50 years before former President Donald Trump appointed three new justices and solidified a hard-right 6-3 majority.

Judicial activism, as it was called, was the right-wing’s primary critique of Chief Justice Earl Warren’s Court. It was at the core of the conservative attack on Griswold v. Connecticut (1965) and Roe v. Wade (1973). For decades it was the main weapon Justice Antonin Scalia and other conservative justices wielded in cases in which they were in the ideological minority.

10 years ago, after the Court upheld the rights of same sex married couples, Scalia told a Federalist Society gathering: “It’s not up to the courts to invent new minorities that get special protections.” Roberts, who sided with Scalia in the case, stayed silent. Apparently that criticism was not “harmful” enough to address.

10 years before that (and before the chief was on the Court), Scalia accused the majority of the Court of having “largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

When the Supreme Court upheld the Arizona redistricting commission in 2006, Scalia wrote that “the majority’s resolution of the merits question (‘legislature’ means ‘the people’) is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.”

Here are just a few of the highlights of Roberts’ dissent in that case: He accused the liberal majority of performing “magic tricks,” lambasted the majority position for having “no basis in the text, structure, or history of the Constitution” and for “contradict[ing] precedents from both Congress and this Court” and claimed that the majority “ignores” evidence and relies instead on “disconnected observations about direct democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy.” I could go on and on.

To be a thriving democracy, we need a Supreme Court that understands the responsibility of its ideological majority, not just its power.

As a lawyer who believes that the courts play an essential role in our democracy, I take the chief’s concerns seriously — that attacks on the Court run the risk of damaging the judiciary and country. An independent judiciary and judicial review are hallmarks of democracy. That is why the independent state legislature theory, which would have curtailed state court judicial review of election laws, was so dangerous.

However, Roberts ignores the obligation of the Court’s majority to maintain its own legitimacy. It is not the job of the dissent to make the majority opinion seem reasonable. That is the job of the majority. If six justices can’t convince the American public that their decisions are consistent with the U.S. Constitution and the proper judicial function, that is a failure of the majority alone.

In 1984, Judge Irving Kaufman wrote an influential essay about the prospect of a conservative president, Ronald Reagan, appointing a majority of the Court. In it Kaufman coined the phrase: “[t]he Court’s only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society.”

More important for today, however, is Kaufman’s next sentence: “When, in the public mind, the Court is functioning as an apolitical, wise and impartial tribunal, the people of our nation – even those citizens to whom the results may be anathema – have evinced a willingness to abide by its decisions.”

There have been periods in American history where the Court has come close to losing the public trust. In 1934, the previously pro-business conservative Supreme Court blinked when confronted with state laws suspending property foreclosures on homes and farms.  

In 1992, after twelve consecutive years of Republican presidents, the Supreme Court heard a sweeping abortion case, Planned Parenthood v. Casey. Though many expected the conservative majority to overturn Roe, a conservative plurality backed away. Justice David Souter explained the reason from the bench:

The promise of constancy, once given, binds the Court for as long as the power to standby the decision survives and the understanding of the issue has not changed so fundamentally is to render that commitment obsolete

A willing breach of it would be nothing less than a breach of faith and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.

Roberts is a brilliant jurist. He is an astute observer of politics and public sentiment. He knew the risk of overturning Roe last year. He was warned of the consequences for the Court as an institution. But for him, and the other conservative members of the Court, overturning Roe was worth it. It was, after all, the reason most of them were nominated in the first place. The announcement of Dobbs v. Jackson Women’s Health Organization last year was the equivalent of hanging a “mission accomplished” sign across the front steps of the Court.

That is why I was surprised when I read that Roberts was “disturbed” by the criticism the Court now routinely receives for politicized decisions. I had assumed that Roberts knew that overturning prior Supreme Court affirmative action jurisprudence and using a made-up doctrine to strike down student debt relief was going to harm the Court’s public standing — even among people who are otherwise skeptical of both programs. I believed that he must have realized that allowing a made-up, contrived case to proceed to the nation’s highest court solely to belittle gay marriage would reflect poorly on the Court.

I believed that Roberts knew better until I read his last words of the term in which he blamed the dissent for the Court’s current predicament. Now I worry that he didn’t know the damage he and the other conservatives were doing. I fear he still doesn’t.

The alternative is that the chief is fully aware of the damage the conservatives are doing to the Court, but he finds it easier to give them a pass and blame the liberals. Picking on the minority is always easier than confronting a majority full of judicial bullies. To be a thriving democracy, we need a Supreme Court that understands the responsibility of its ideological majority, not just its power.