EDITOR’S NOTE: This special issue on the Roberts Court was developed in partnership with the Alliance for Justice and edited by Mark Sorkin. Additional reporting by Ethan Corey.
This is a pivotal moment for justice in America. As we approach the 10th anniversary of John Roberts’s appointment as chief justice, we face a presidential election in which the future of the Supreme Court hangs in the balance. For decades, the Court has been a deeply conservative institution, defined largely by the Republican presidents who have appointed its life-tenured justices. Since Chief Justice Earl Warren retired in 1969, Republican appointees have outnumbered Democratic appointees 12 to four. Justices Antonin Scalia and Anthony Kennedy, vestiges of the Reagan administration, continue lending influence to a presidency that ended nearly 30 years ago. But it is also an aging Court ripe for change. Four justices (Scalia, Kennedy, Stephen Breyer, and Ruth Bader Ginsburg) will be in their 80s by 2018, likely giving the next president power to set the Court’s direction for a generation or more.
Voters will face a stark choice next year: elect a president who will reverse the Court’s long conservative trend with a new progressive majority, or one who will further solidify the legacy—explored throughout this issue—of Chief Justice John Roberts.
To show what’s at stake, The Nation has asked 10 astute Court watchers to review a case from each year of the Roberts Court, situating it within the last decade of decisions and reflecting on what it reveals about the Court’s biases.
The result is a wide-angle portrait that thoroughly debunks the myth of Roberts as unbiased umpire. Rather than provide “equal justice under law,” Roberts has led a narrow conservative majority that consistently favors the privileged and powerful (especially corporations) at the expense of everyone else (especially women, workers, consumers, people of color, and the accused). For all of its claim to judicial restraint, the Roberts Court aggressively enacts conservative policy, unafraid to overturn long-standing precedent or second-guess the elected branches in order to strike down progressive reforms.
Against this backdrop, we should question recent claims that the Court is actually more liberal than many realize. That refrain peaked last term, after the Court rejected challenges to the Affordable Care Act and fair housing and recognized a right to same-sex marriage. In the concluding article of this issue, David Cole points to the Court’s “significant number of liberal decisions,” and the roles that Kennedy and even Roberts have played in moderating its rulings, as evidence of a more balanced Court.
But such claims depend on a generous grading curve that discounts the Court’s relentless rightward progression. After 10 years of John Roberts, Americans are conditioned to judge the Supreme Court from an artificial baseline that is the product not just of the Court’s decisions, but of the cases it elects to take. The Court’s docket has provided few opportunities for truly progressive outcomes (marriage equality is one exception). Instead, every year we ask only where the Court will make shifts to the right and where it will decline to do so by affirming the status quo (with the option of doing more damage later). For progressive Court watchers, victory is rarely more than a long exhale after avoiding complete disaster.
That was true of the healthcare and housing-discrimination cases last term, which only a profoundly conservative Court would have heard in the first place. Neither involved disagreement among the courts of appeals, and neither presented a serious legal question. The healthcare case, a naked attempt to destroy the Affordable Care Act, relied on what Fourth Circuit Judge Andre Davis called a “tortured, nonsensical construction of a federal statute.” In the housing-discrimination case, the Court merely affirmed what for nearly 30 years had been the consensus of Congress and the lower courts: that the Fair Housing Act protects victims even when they cannot meet the nearly impossible task of proving intentional discrimination. That the Court declined to adopt the extreme arguments raised in these cases is hardly a victory.