Chief Justice John Roberts has just completed his eighteenth year as the leader of the Supreme Court. The jurist has a keen sense of history and is more than mindful that he is in a unique position to shape the future of the country. He is also acutely aware that The Supreme Court is the unelected institution of the three pillars of Government and its legitimacy to a large extent is dependent on how the American citizenry respect and approve of its actions. It is painfully obvious that the Robert’s court has currently scant acceptance from the American public with the lowest approval rate in history. A Quinnipiac poll taken prior to the release of the most recent highly contentious decisions showed a 29 percent approval rating. When a President running for re election can feel politically comfortable in calling this Court “Not Normal” Roberts should be taking note, which in fact he is.
So it is obvious why Roberts, after eighteen years as Chief Justice, has taken the unprecedented action of including in the body of one the Court’s most recent controversial decisions the current perception of the court in the public domain. He pleads for all concerned not to question the integrity of the Court as he argues that it “could be harmful to the country”. In addition it would be instructive for Robert’s to reflect why the seventeen year Warren Court was and is still positively regarded while his court, after18 years, is making fruitless appeals for validation.
Before plunging into the retrogressive decisions there are two which have engendered positivity from a wide spectrum of opinion, especially those who believe that nothing good can emerge from the Roberts Court. Roberts, who has led to the undoing of much of the Civil Rights Voting Act, opposed the State of Missouri who had created only one constituency where African Americans, who represent 27 percent of the voters, were in the majority. The other “good” news was that the Court denied the North Carolina legislature’s contention that they, not the State Courts, had the final say on election results. The unbridled legislative power being the Trump theory in one of his abortive attempts to overthrow the 2020 election
THE WARREN AND ROBERTS COURTS
The Warren Court stands out as a beacon in heralding equality and relegating legal segregation to the dustbin of history. The fact that two African Americans are belting it out in the Roberts Court is in no small measure a result of what the Warren Court was able to achieve. Roberts appears to have conflicting agendas. He has an ideological bent which is plainly evident to every and any observer whether they applaud it or oppose it. Warren, a former Republican Governor, had a far more open vision and wasn’t hamstrung by any label. Nor was Warren handicapped by a process whereby three judges on his court, who when the president nominated them, assured his constituents as to how they would rule from the bench. Neither does the fact that the nomination of at least one Justice pick was literally “robbed” from Obama by the then GOP controlled Senate, help validating Roberts’s craving for legitimacy. His apparent non action of the unethical behavior of some of the members of his court further sours public support.
IT COMES DOWN TO THE ROLE OF THE SUPREME COURT IN RELATION TO SOCIETY
Surely the role of the Supreme Court, in interpreting The Constitution, should reflect the evolution of societal values, codify them and only to a certain extent lead. The Warren Court in their landmark school segregation decision claimed that “separate but equal" was inherently unequal on the basis of the reality situation, thereby setting the stage for the continuation of the civil rights struggle which was taking place in society. The Warren Court emphasized the right to privacy when States attempted to ban contraception, (privacy was also the constitutional basis for the right to abortion up to twenty three weeks in the Roe v Wade decision). They also blocked attempts to hinder the Voting Rights Acts.
In short the court was in sync with society on the general desire to move away from discrimination.
WHERE IS SOCIETY IN RELATION TO THE ROBERTS COURT?
While there is little doubt that while the body politic, as represented by blue and red state legislatures is at loggerheads there is a remarkable consensus on most of the values that the Court issued societal decisions. Chief Justice Roberts in an effort to stamp his imprimatur on the legacy of the court authored all the underlying opinions except the abolishing of the right to abortion.
Roberts, himself, voted against the total nullification of the fifty year old decision Roe v Wade which allowed abortion up to twenty three weeks under the “privacy” provision of the constitution and had been ratified again and again. He was not “blameless” however in the outcome. He merely did not want to go as far as the rest of the Conservative Court. He saw a gradual solution to the “problem” and wanted to decrease the time where abortion would be allowed to 13 weeks, which was what the plaintiffs had asked for. This decision was in the teeth of societal opinion, polls consistently showing sixty percent or more opposed to it. A Pew study showed that twice as many women, “strongly disapproved" the outcome as compared to men. After all the country is in a"MeToo" world with more and more control and equity being demanded and being received by women.
Without a doubt the abortion decision was the most impactful of the Roberts Court’s reign. Chief Justice Roberts in an address stated that it was not the issue per se rather, he confided, “The hardest decision I had to make was whether to erect fences and barricades around the Supreme Court. I had no choice but to go ahead and do it”. That decision was made in the wake of protests that followed the leak of Justice Alito’s draft opinion overturning Roe. With regard to the latter there was deep dissatisfaction at the process the Chief Justice utilized in investigating the leak of the outcome, which many alleged may have been by the author of the decision, Justice Alito.
In June 2022 the Roberts Court ruled, in a 6 - 3 decision, that more people could legally carry guns on the streets of the nation’s largest cities. This decision undid a trove of State laws which had placed various restrictions on the wholesale freedom to “carry” weapons. Society in the wake of the increasing epidemic of gun violence and mass shootings, in a Fox poll, reflected their attitudes towards this interpretation of the Second Amendment. The poll indicated that 87 percent of those surveyed wanted at least some or other control of gun possession and certainly not a liberalization of existing law. The Court’s decision took no account of the random havoc that is being wrought unhindered by their interpretation of the Second Amendment.
Then the Court considered a case impinging on LGBT rights. Their ill thought out resolution could open the door to a potential wholesale denial of rights and services to the LGBT community.
The Supreme Court even accepting to hear this case raised legal eyebrows as the complainant had no "standing". Normally a complainant has to have "injury in fact to their legal interests". This case raised a hypothetical question as to whether a web designer, who was going to create sites for weddings claimed, for religious reasons, that she would want to refuse to design a website for non heterosexual unions. The case was further muddied by the fact that the hypothetical question had allegedly been asked by what turned out to be a married heterosexual male who categorically denied ever contacting the plaintiff. The legal argument here was that the future website designer was entitled to her First Amendment Rights to free expression and freedom of religion and therefore could refuse to serve the non heterosexual couple.
A Gallup poll of January this year indicated a 71 percent acceptance rate of same gender marriage unions which in fact to date has been the position of the Court. However, to Jay H. Ell, a lay person, it appears obvious that anyone, might be entitled to express an opinion such as "races should not mix" and in the event of their opening a restaurant they might not want to serve those of color for religious reasons.
Another decision in a case again where the plaintiffs had “no standing” was the allocation of funds by President Biden - up to 20,000 dollars of their student debt for those earning less than 75, 000 dollars a year and 10,000 for those earning up to 125, 000 a year. The Court’s decision in effect was a refutation of Executive Power in what the legal fraternity, regardless of their position, maintained was a reasonable interpretation of the “Heroes Act”. Biden’s rationale, besides the crippling effect, that educational costs impose in the USA, was the impact of the Covid pandemic.
Notwithstanding the fact that those without College debts would have scant sympathy for this cause, 62 percent of those surveyed by another poll sponsored by Fox News were “broadly in favor” of debt relief programs.
In the final decision of the Court, society, according to a Pew poll, was evenly split on whether to allow race to be a consideration in College Admission. This litigation is a hardy perennial in Supreme Court hearings and precedent after precedent, taking into account amicus briefs of societal leaders from all walks of life, has resulted in it remaining untouched. The supporting arguments included the importance of “leveling the playing fields” for the African American sector, whose circumstances generally, including school education, have been far poorer than the other sectors in the community. The Court ruled in favor of axing Affirmative Action.
It was in the Affirmative Action litigation that Chief Justice Roberts chided the Justices who impugned the decision making process of their colleagues. In addition he made his general appeal to the body politic to accept the Supreme Court decisions in good faith. Justices Ketanje Brown Jackson and Clarence Thomas, both African Americans in written opinions had disagreed with one another in the sharpest possible language. In dissenting Chief Justice Roberts’s argument, Justice Jackson Brown caustically pointed out that the Roberts decision made an exception for the military, allowing Affirmative Action, to continue there. She maintained that “it was alright for the bunker but not for the board”. Justice Sotomayor in her detailed dissent claimed that The Court finding was not constitutional.
AT THE END OF THE DAY
It is a reasonable assessment that as opposed to reflecting, leading and codifying current societal values the Roberts Court is negating them. In so doing they are often reversing long standing precedents. The latter in spite of the last three Trump appointees, during their nomination processes, repeatedly claimed that they had the utmost respect for precedent. It is exceedingly unlikely that their decisions will ultimately change the direction society is headed.
Chief Justice Roberts has failed to address the incidences of blatant ethical misconduct of members of his Court which would have lead to serious enquiries in any other court below the Supreme Court. This latter fact is thought by some commentators to have been the main factor that contributed most to their abysmal poll numbers.
Chief Justice Roberts might find that his court will not have any positive historical significance. Who remembers his predecessor, the nineteen year Rehnquist Court? Most recalled are its decisions to stop a Florida State Presidential recount ordered by the Florida’s Supreme Court. In fairness many of the societal issues reversed by the Roberts Court were reaffirmed by the Rehnquist Court and the latter invalidated laws against sodomy that were still present in certain Southern States.
Chief Justice Roberts's plea for no internal dissent in The Court has fallen on deaf ears as the minority three female members have continued to call out the decision making of The Court. Chief Justice Roberts can do nothing about the criticism leveled. Like Justices Thomas and Alito they are life appointees.
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