John Roberts is entering the stretch run of his tenth term as chief justice of the United States. In-depth assessments will come, but the preliminary results are plain. 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 chief justice has emerged as a cunning strategist and leader willing to defy the customs and traditions that buttress the Court’s legitimacy. He has led a Court that has repeatedly overreached by taking cases it does not need to hear, answering questions not squarely before it, and ignoring or overruling longstanding precedent—all in the service of deciding the issues that the conservative majority wants to decide, in the manner it wants to decide them. Roberts has been aided in this effort by Justice Samuel Alito, who joined the Court just months after Roberts and has written some of the most radical decisions of the past nine years.
The Court’s march to the right has occasionally been interrupted by the defection of Justice Anthony Kennedy from the conservative majority, resulting in decisions striking down the Defense of Marriage Act and limiting death sentences for low-IQ defendants as well as life imprisonment for juveniles. But even 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.
The chief justice has also pursued his agenda by telling the pitcher what to throw. In Citizens United, the Court initially heard arguments on a far more modest case, then ordered the parties to prepare briefs for a broader constitutional attack on campaign-finance restrictions and the Court’s own precedents. After re-argument, the Court issued its sweeping ruling in favor of the position it had told the petitioners to take.
The sad irony is that, rather than serve its traditional role as the institution of government where those shut out of the political process can find a voice, the Court has used its rulings to strengthen the already deafening voices of the wealthy and powerful. At the same time, it has insulated itself and the lower federal courts from the pleas of the politically disfavored by slamming shut the courthouse doors.