Source Body Text

Throughout his two decades as chief justice of the US supreme court, John Roberts has sought to project the notion that he is the ultimate institutionalist, striving (supposedly) to safeguard the venerated foundations of American democracy. But with each passing year, it has become increasingly clear that Roberts will be remembered as the chief justice who helped wreck numerous institutions vital to our democracy – they include fair, non-gerrymandered elections, a sane campaign finance system, the Voting Rights Act’s protections of minority voters, and the bedrock notion that presidents are not above the law. Roberts said in his confirmation hearings that he would merely “call balls and strikes” as chief justice, but now two decades later, many legal commentators are deeply dismayed that he has shunned the role of neutral umpire and instead spearheaded a rightwing judicial revolution that took a wrecking ball to many precedents, laws and institutions. Some have called him the worst chief justice since Roger Taney, who wrote the horrific Dred Scott decision of 1857, which held that enslaved Black people couldn’t be citizens. As one example of Roberts’ weakening our democracy, take congressional redistricting and the tradition of fair, democratic elections. Roberts wrote the majority decision in Rucho v Common Cause, a gerrymandering case that is largely responsible for turning redistricting into a disgraceful, hyper-partisan mess in which state legislatures can gerrymander as much as possible and, in effect, determine the results of congressional elections even before voters step into the voting booth. Roberts wrote that federal courts have no power whatsoever to overturn or interfere with even the most extreme partisan gerrymandering. With that myopic, anti-democratic ruling, Roberts has allowed gerrymandering to turn many congressional elections into farces, meaningless exercises in which legislators pick their voters rather than the other way around. If Roberts truly cared about safeguarding democracy, he would have cracked down on gerrymandering, and we wouldn’t be seeing today’s mad redistricting arms race in Texas, California and other states. Then there was the court’s disastrous Citizens United decision, which demolished our federal campaign finance system. That system had gone far to prevent the super-rich and corporations from having undue sway over our government. By overturning most contribution limits on the wealthy and business, Citizens United and its progeny turned our campaign finance system into an anything-goes cesspool in which individuals have donated $50m, even $100m, to campaigns, not to mention Elon Musk’s astonishing $277m benefiting Trump and the GOP last year. (I should note that Roberts didn’t write the Citizens United decision; he instead orchestrated it.) That decision has gone far to turn the US into a plutocracy in which powerful corporations and billionaires such as Musk, Larry Ellison and Charles Koch have far too much influence over our politics and policies. Meanwhile, the voice of the average American is increasingly overshadowed, and even negated, by big money and dark money. Roberts has also led the way in eviscerating the Voting Rights Act, which aimed to ensure that states and localities don’t discriminate on the basis of race when they adopt voting maps and election rules. Roberts wrote the majority opinion in Shelby County v Holder, which overturned two key sections of the act that empowered the federal government to block states and communities with a racist history from adopting discriminatory voting maps and regulations before they took effect. Roberts justified that ruling by reaching the naive conclusion that state lawmakers’ desire to adopt discriminatory voting rules had largely disappeared. In the court’s current term, Roberts seems ready to tear down one of the last pillars of the Voting Rights Act – section 2 bans election or voting practices that discriminate by race. In a Louisiana redistricting case, the court will decide whether it’s unconstitutional to use race as a factor when drawing voting maps. If the court concludes that it’s illegal to take race into account, that would make it easy for lawmakers in southern states with large African American populations to stop creating Black-majority districts when they are redistricting and to instead adopt voting maps that would have few, if any, congressional districts represented by Black people. Roberts seems on the brink of destroying another institution: independent federal agencies such as the Federal Trade Commission (FTC) and the National Labor Relations Board. In several recent emergency docket decisions, Roberts has suggested he is ready to overturn a 90-year-old supreme court precedent and give Trump the authority to fire any agency official he wants, even without giving a reason, even though federal law says officials from those and other agencies can only be fired for cause, such as malfeasance. If Roberts and the conservative super-majority overturn that precedent, it would let Trump, the most authoritarian president in US history, turn independent agencies into weaponized, partisan instruments under his control. Trump might, for instance, tell FTC commissioners that he’ll fire them unless they sue such-and-such perceived Trump enemy for billions of dollars. Every law student learns that article I of the US constitution gives Congress the power of the purse. But in a series of recent emergency orders, the Roberts court appears to have handed a lot of Congress’s spending powers over to Trump. In those emergency orders, which are temporary until final decisions are rendered, Roberts and the court’s conservative supermajority badly undercut Congress’s spending authority by giving a green light to Trump’s gutting the Department of Education and freezing $5bn in foreign aid – even though Congress had funded that department and that aid. Then there was Roberts’s much-criticized decision in Trump v United States, which gave Trump sweeping immunity from prosecution if he engages in crimes. Many legal experts complain that it puts Trump above the law and will encourage an authoritarian president to take illegal actions with little concern about accountability or prosecution. One has to ask, if Roberts had not given Trump such huge immunity, might Trump have refrained from demanding that prosecutors pursue James Comey and Letitia James because such strong-arming of those prosecutors might put him in legal jeopardy? Under Roberts, the supreme court has taken a wrecking ball to something else: the notion that the country’s highest court was largely non-partisan. The Roberts court is often viewed as favoring the GOP and Trump. Its decisions on campaign finance, voting rights and gerrymandering are widely seen as boosting Republicans’ chances in elections. What’s more, the court has been called hugely pro-Trump because since he returned to the presidency, it has ruled wholly or partially in his favor in 20 of 23 emergency docket cases that concerned Trump administrative actions. The bottom line is that under John Roberts, the court has gone far to weaken the pillars of our democracy; it has given the super-rich and giant corporations huge sway over our elections, greatly weakened protections for minority voters, encouraged out-of-control gerrymandering, handed more and more power to the most authoritarian president in history and emboldened him to act lawlessly. In other words, the Roberts court has done much of what an authoritarian ruler would want. As I’ve written before – perhaps too optimistically – it’s not too late for Roberts to begin to redeem his reputation and legacy. He showed some signs of doing this in early November in signaling that he thought Trump had violated the law in imposing his “emergency” tariffs on dozens of countries without clear authorization from Congress. We can hope that the tariffs case will serve as a long-awaited, much-needed first step for Roberts and the conservative supermajority to develop a backbone and begin issuing a series of rulings that curb Trump’s unending power grab. If they don’t stand up to Trump’s lawlessness soon, we may truly lose our democracy. Steven Greenhouse is a journalist and author focusing on labor and the workplace, as well as economic and legal issues