« The last couple of days in office have been absolutely cataclysmic, and to the extent people were sleeping behind the wheel, it’s because it kind of anesthetized them, » said New York University law professor Melissa Murray.
Last June, the six-judge conservative majority cemented by former President Donald Trump flexed its muscles for the first time – with Roberts sometimes on the sidelines, as he was when the other five conservatives overturned Roe versus Wade. During this time he seemed intent on regaining control.
Earlier this month, the chief justice broke with her own history in voting rights cases, taking the helm as the court, in a 5-4 vote, sided with black voters in a Voting Rights Act case challenging alleged racial gerrymandering. The decision, which sparked strong dissent from the conservative bloc, is expected to help Democrats win several congressional seats in 2024.
So, Roberts again took up the pen as a tribunal he refused to embrace a radical legal theory that could have given state lawmakers far-reaching powers over elections, potentially even the power to nullify contested elections, just as Trump and his allies have been trying to do in 2020.
In other fractured decisions rejecting adventurous conservative legal arguments, Roberts voted with the Liberals for support President Joe Biden’s immigration policy AND support the Indian Child Welfare Act.
These views seemed in line with the chief justice’s reputation as a pragmatic institutionalist who sought to protect the court amid intense criticism. But some observers warned that his moves were mere feints aimed at preserving the veneer of respectability around the court, even as the conservative supermajority’s plan to radically reshape American law proceeded.
The unusual alliances and cross-party splits that marked some of the previous mandate decisions were nowhere to be found Thursday and Friday as the court’s most high-profile cases played out along predictable ideological lines.
When the smoke has cleared, the decades use of race to achieve diversity in college admissions was effectively dead, as was Biden’s marquee policy forgiving student debt for tens of millions of Americans. And the series of High Court decisions expanding the rights of the LGBTQ community for more than two decades has been interrupted and rejected by a ruling defend the right of entrepreneurs refusing service to same-sex couples on grounds of free speech.
Some analysts say the idea that Roberts’ early decisions were truly centrist is misleading because they were actually rejections of radical positions, such as the claim that state legislators should be able to alter any aspect of electoral rules or even overturn the election results. with no state courts or state constitutions playing any role.
« The Roberts court should get no credence for the notion that the rejected independent state legislature’s doctrine is any kind of restraint, » said Fordham law professor Jed Shugerman. « It’s just Overton Window talk, » he added, referring to a strategy that seeks to move the debate in a particular direction, by proposing a previously unthinkable possibility and then walking away from it.
Shugerman also said that some of the maneuvers by Roberts and her colleagues are hard to reconcile, such as acknowledging the need to rely on race in disputes over Voting Rights Act cases, but completely chiding the practice in college admissions.
« It’s hard to square all that color-blind rhetoric from the affirmative action case, while at the same time they were writing a very, rightly, non-color-blind interpretation of the Voting Rights Act, » Shugerman said. « It is difficult to read these two decisions side by side. »
Some conservative legal experts pointed to the case of immigration, in which the court challenged the Biden administration’s priorities for arresting and detaining people living in the country illegally. That decision snubbed both the state of Texas and the 5th Circuit Court of Appeals, both of which have played key roles in recent years advancing legal challenges to policies ranging from immigration to abortion.
« Texas and the 5th Circuit did not do particularly well in court this quarter, » said Jonathan Adler, a law professor at Case Western Reserve University. « At the same time, that doesn’t mean that affirmative action is OK or that the Biden student loan program is OK. »
Roberts’ sensitivity to having the court seen as a prior arbitrary overturn was particularly demonstrated in the affirmative action case, where his opinion appeared to rule out the use of race in admissions in the way most colleges and universities do. some elite universities use it these days. However, he stopped short of reversing the 2003 precedent that blessed the continued use of race as a factor in that arena. Grutter v. Bollinger.
Such an approach might have prevented some critics from claiming that the court was again setting a precedent, but because both Judge Clarence Thomas, who signed Roberts’ sentence, and Judge Sonia Sotomayor, who disagreed, said that the decision did indeed prevail Biggerdespite Roberts’ cover.
One of the challenging aspects of the past year for Roberts has been the public criticism of the court from its own members, principally from Judge Elena Kagan, who embarked on a speaking tour last year in which she repeatedly accused her colleagues nominated by the Republicans to make decisions that were more rooted in politics and personal preference than the law.
That criticism resurfaced in Friday’s student debt ruling when Kagan said the GOP-appointed majority was overstaying its role.
At one point, Kagan said « a court acting like a court » would dismiss the case on the grounds that the six GOP-led states they sued had no direct interest in the loan forgiveness program. While the phrase may seem innocuous, it’s a phrase Kagan has used on previous occasions to accuse his colleagues of abandoning legal principles and using the cases to achieve political goals.
Roberts devoted the last passage of his majority opinion on the student loan case to refuting Kagan’s criticism, also expressing the kind of discomfort he has publicly expressed on criticisms that appear to be aimed at the legitimacy of the court rather than at individual decisions.
“It has become a disturbing feature of some recent opinions to criticize decisions with which I disagree as going beyond the proper role of the judiciary,” Roberts wrote, insisting that the court’s ideological cleavages are simply reasonable disagreements about how to enforce” traditional tools of judicial decision-making ».
« It is important that the public is not misled », he continued, because any suggestion to the contrary « would be harmful to this institution and to our country ».
One prominent court observer who saw hints that Roberts was trying to moderate the court but was deeply disappointed with this week’s decisions was Biden.
When asked on Thursday whether the court had gone « rogue » and was undermining its own legitimacy, Biden replied, « This is not a normal court. »
Biden, who has resisted passing major changes to the court, did not urge a challenge to the court’s affirmative action decision, but he came close.
« We cannot let this decision be the last word, » the president said. « Although the court can make a decision, it cannot change what America stands for. »
In an interview later in the day, Biden said he believes the court went beyond the precepts of even the conservative Federalist Society by withdrawing and overturning precedents. « She has done more to expose fundamental rights and fundamental decisions than any court in recent history, » she told Nicolle Wallace on MSNBC.
However, Biden also said he saw signs the justices were sympathetic to the decline in public respect.
« I think some in court are starting to realize that their legitimacy is being questioned in ways it hasn’t been questioned in the past, » the president said, describing the chief justice as a « maybe » in that group. .
Meanwhile, the ethics storm that swept through the courthouse last fall has not abated, despite Roberts’ modest attempts to please the courtroom’s critics. Reports of undisclosed trips by Justices Clarence Thomas and Samuel Alito fueled long-standing concerns about the lack of a formal High Court code of ethics and any police enforcement mechanisms for alleged conflicts of interest.
“It too was a one term barnburner off 1 First Street. The press in court has been unrelenting,” Murray noted. “The court has been a bit in your face all year, even when they weren’t issuing decisions. I have to think John Roberts doesn’t love him.