John Roberts Is Starting to Sweat

If there’s one thing Chief Justice John Roberts would like the American people to believe, it’s that his Supreme Court is not at all political. Like the transparent eyeballs at The New York Times politics desk—such as Peter Baker, who doesn’t vote, as doing so might indicate the dreaded partisan bias—Roberts sees his role as “to call balls and strikes and not to pitch or bat,” as he put it in his confirmation hearing in 2005.

After the Court’s most recent decision gutting what’s left of the Voting Rights Act in Louisiana v. Callais, which sparked volcanic outrage across the country and the destruction of not only several majority-Black House districts but representatives for many of America’s cities, Roberts is back on his routine. At a judicial conference in Hershey, Pennsylvania, this week, he squalled that people were misunderstanding his project and being very mean to him personally. “I think [people] view us as purely political actors, which I don’t think is an accurate understanding of what we do,” he said. “We’re not simply part of the political process and there’s a reason for that and I’m not sure people grasp that as much as is appropriate.”

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He also lamented a shift “from criticism of the opinion to criticism of the judge … As soon as you personalize, it can become problematic.”

Judging from the preposterousness of these remarks, I suspect that Roberts himself is starting to question whether this time he and his fellow right-wing hacks in robes have, at long last, gone too far.

As an initial matter, it is a priori impossible for legal decisions to be nonpolitical. (The same thing is true of journalism.) The Supreme Court is part of the government, its members are appointed by politicians, and its decisions have obvious political effects. Even the most neutral imaginable adjudication of some technical legal dispute rests on an assumption that the rule of law is a good way to organize society—a political opinion not shared by everyone. Donald Trump, for instance, does not believe it. (Although he’s at least the most honest of the lot on this point, that legal decisions are clearly political. That’s why he thinks the Court should side with him on whatever he wants, because he appointed them.)

That doesn’t mean that all judicial decisions are equally fraudulent, of course. There is no escape from politics, but there are such things as good and bad faith. And John Roberts is the most bad-faith chief justice at the head of the most dishonest Court majority at least since Melville Fuller, who presided over the Plessy v. Ferguson decision that legally sanctioned Jim Crow tyranny, and arguably ever. Not even Fuller or Roger Taney ever argued that the president is above the law.

The Callais decision is a perfect example. Not only does the 15th Amendment very obviously authorize the VRA’s requirement for majority-minority districts in certain places, it also specifically sets out a results-based test for whether something is discriminatory. After all, the mass disenfranchisement of African Americans in the South under Jim Crow was often carried out through facially neutral tactics, precisely to create plausible legal deniability. That was why Congress amended the law in 1982.

In his majority opinion, Justice Samuel Alito ignores the Constitution and the text of the VRA to return to an intent-based test, while claiming that he is rooting out “race-based discrimination that the Constitution forbids.” Just like in Jim Crow, so long as the jug hooting Ku Klux Klan members in the Alabama state legislature are smart enough to not write down “we are taking voting rights away from minorities, because we are personally fervent racists” then they can disenfranchise minorities to their hearts’ content.

The Court’s flagrant political bias can also be seen in the fact that the majority allowed an illegal racial gerrymander to stand in Alabama in 2022 because it was supposedly too close to an election to change it, but today is allowing Florida, Tennessee, and Louisiana to redraw their districts less than a month before their elections. Indeed, in Louisiana voting had already started when Gov. Jeff Landry suspended the elections to give time for additional gerrymandering.

And Callais is only somewhat more preposterous than Shelby County v. Holder, the Roberts-written opinion that struck down Section 5 of the VRA. He didn’t even bother to point out which part of the Constitution the law supposedly violated in that decision.

The Court Didn’t Just Disenfranchise Blacks. It Also Disenfranchised Cities.

Everyone can see what is happening. These are a pack of partisan hacks ruling by decree. Disenfranchising Black people benefits Republicans because Black people vote for Democrats, and Roberts and his fellow party activists on the Court will delete nearly any law that stands in the way of that. The decision might as well have been copy-pasted from the lorem ipsum text. To adjust the saying somewhat, Roberts is micturating directly in our collective eye sockets and then saying “it isn’t raining at all, no sir, and frankly you’re very rude for even mentioning the word ‘wet.’”

The reason the Court has hitherto gotten away with this is a handful of lucky Republican presidential victories, and the timidity of the Democratic Party. President Biden, confronted with Court reform activists who warned him that the rogue Court majority was going to disembowel his presidency and pave the way for Trump to return, punted the issue to a blue-ribbon panel of credentialed experts, which naturally went nowhere. The Court went on to repeatedly overturn Biden’s policies based on invented doctrines and then anointed Donald Trump as king.

The problems with the Court have only gotten worse since then. This is a rogue institution corrupt to its very marrow, and even moderate Democrats are starting to see that it is an imminent threat to the American republic itself. That’s why 16 years after the epic Republican gerrymandering spree began, Democratic states have started to respond in kind. Efforts are afoot to raise the stakes once again in reaction to this fresh round of GOP election-rigging.

Hence Roberts’s indignant harrumphing that nobody is allowed to criticize him and his fellow law wizards. Outrageous, flagrant lying got him this far; he might as well keep it up. But let’s hope it is no longer enough.