'The American people are onto' John Roberts as a 'savvy political operator'

Chief Justice John Roberts has long been fond of asserting the apolitical nature of the Supreme Court. Way back in 2009, when he was just four years into his tenure, he declared, “The most important thing for the public to understand is that we’re not a political branch of government.” Nearly two decades later, he said something similar, on Wednesday telling a conference of legal experts, “We’re not part of the political process,” although he did admit that the public doesn’t agree with that assertion.

According to Salon’s David Daley, his claims raise two key points. First, that the Court’s recent decision to gut the Voting Rights Act has been part of his politically-motivated plan for just as long as he’s been claiming the Court isn’t political. And second, “that the American people are onto him.”

As Daley explains, Roberts entered the Court in 2005 as a “savvy political operator” who framed himself as a “sensible midwestern institutionalist,” understanding “that it would be easier to enact his reactionary agenda if he could maintain the illusion that the Court functioned above the grubby influence of partisan politics.” Since then he’s instilled Democratic senators and legal experts with the idea that he’s just an umpire calling balls and strikes.

“But it has curdled with the American people,” says Daley, “who see clearly how the strike zone changes on the most important questions based on which party benefits electorally. Roberts is no umpire. He has, patiently and strategically, shifted the nation and the Constitution dramatically to the right on voting rights, immigration, the regulatory state, reproductive rights, gun control and executive power.”

When it comes to the Voting Rights Act specifically, the Roberts Court's first blatant attack came in 2013, when a decision on Shelby County v. Holder froze many of its key enforcement mechanisms. But as Daley notes, this was no mere judicial opinion, but a policy effort pushed by the Republican political machine.

“Wealthy donors on the right,” writes Daley, “centered around a little known but staggeringly powerful organization called DonorsTrust — often called the right’s ATM — helped fund, along with other major conservative foundations, the organization that developed the Shelby County case and identified the plaintiffs. Then they covered the seven-figure legal fees for the Supreme Court case. They also funded the Federalist Society, which helped vet the judges who decided it, and supported the conservative law professors who generated theories, legal concepts and amicus briefs. But if we are to believe the chief justice, there’s nothing to see here. Just law. Not power.”

Daley suggests that this is more than mere hypocrisy, but part of a long-term Republican effort to supplant the public will.

“Republicans needed the courts to enact this ultra-conservative agenda precisely because it could not be won at the ballot box,” says Daley. “The Voting Rights Act, after all, was reauthorized nearly unanimously by a Republican Congress and president, George W. Bush, in 2006. But they concurrently placed Roberts and Justice Samuel Alito on the bench to slowly erode it from within, a crime with no political fingerprints. And so they embarked on a decades-long quest to capture the courts.”

And as Daley notes, while the GOP attempts to circumvent voters by a range of means, such as gerrymandering Congressional maps, it takes far less effort to do it from the Court, as the “math is easier. There are only nine justices. Win five seats and you have the last word on nearly every question in American politics.”

According to Daley, Americans recognize that the Court “has become an enemy of democracy and voters alike,” which is why polling shows public confidence in it at a historic low. He lists many actions that can be taken to remedy the situation, such as enlarging the court, randomizing case justice selection, putting term limits on justices, and more.

In the end, says Daley, “his longest-lasting legacy will be that Roberts has shown everyone that the Court is emphatically a partisan, political institution,” and that Americans should “use our power to reform it and bring an arrogant body back into line.”

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