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Reading, Looking, Listening, . . . Questioning

Examining Ten Terms of Chief Justice Roberts

downloadIn the most recent issue of The Nation, Nan Aaron, William Yeomans, and Michelle D. Schwartz look back on nearly ten years of a John Roberts-led Supreme Court. They argue that the effects of Roberts’ leadership are clear: the interests of the powerful are the primary guide to his– and The Court’s– decision-making:

The man who vowed to act as a neutral umpire calling balls and strikes has led a Court in which racial and religious minorities, women, workers and consumers have struck out regularly, while the economically and politically powerful have walked around the bases.

The authors argue that Roberts’ opinions operate more as steps toward a larger pro-business goal than as responses to the discrete questions the cases present:

[E]ven when the chief justice has split with his conservative colleagues, as in upholding the Affordable Care Act (ACA), he has often exacted an enormous toll—in the latter instance, with a ruling that the expansion of Medicaid was fully optional for states. That ruling has deprived millions of affordable healthcare.

In that same case, Roberts employed a recurring technique that has served a right-wing agenda while appearing reasonable. When upholding the ACA as a tax, he wrote an opinion severely—and without precedent—narrowing the scope of congressional power to regulate interstate commerce, a power that has been crucial to upholding social-welfare and civil-rights legislation. The chief justice used the same tactic in 2010, when he convinced seven other members of the Court to sign on to a narrow opinion that laid out the grounds on which the conservative members of the Court would subsequently gut the Voting Rights Act.

Examples of Roberts’ approach are laid out by category (the authors provide ten, in total). Two stand out, especially:

§ Business: The Roberts Court has made Mitt Romney’s statement that ‘corporations are people, my friend,’ a central component of its jurisprudence. It has imbued corporations with the right to religious expression, as well as the right to free speech through political advertising and unlimited political spending. Spurred on by an elite Supreme Court bar largely in the service of wealthy corporate clients, the Roberts Court has become the most pro-business Supreme Court in generations. According to a study written in part by conservative Seventh Circuit Judge Richard Posner, the five conservatives on the Roberts Court are all among the top ten most pro-business justices since 1946—with Alito and Roberts ranking first and second.

§ Campaign finance: Under the banner of protecting speech, the Roberts Court has taken every opportunity to magnify the voices of the wealthy. Citizens United v. FEC, which allows corporations and unions to spend unlimited sums, and McCutcheon v. FEC, which struck down aggregate campaign-contribution limits, presage the destruction of all meaningful campaign-finance regulations and have already contributed to record levels of spending. As Justice Stephen Breyer wrote, these decisions have ‘eviscerated our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.’

What does the future hold? The authors place the onus squarely on the voters’ shoulders:

John Roberts turned 60 in January. Because of lifetime tenure, we may be looking at another two decades or more with Roberts as chief justice. But two of his fellow conservative justices—Scalia and Kennedy—are 78. It is likely that the next president will nominate their replacements, as well as those for 81-year-old Ruth Bader Ginsburg and 76-year-old Stephen Breyer. The 2016 presidential election is likely to determine the Court’s direction for at least a generation.


—Drew Whitcup, Zeteo Contributing Writer

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