Trump has the Republican-leaning Supreme Court he wants. Including John Roberts.

There are reasons to be skeptical that the chief justice will put the interests of American democracy over those of his party.
Image: Chief Justice John Roberts
Chief Justice John RobertsJabin Botsford / Pool via Reuters file
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By Scott Lemieux

The Roberts Court truly became the embodiment of its name last year with the resignation of Anthony Kennedy, when Chief Justice John Roberts became the so-called swing vote on most of the politically relevant issues coming before it. Would, people asked, Roberts respond to his new role by acting as the guardian of American democracy, even if it required standing up to a Republican administration?

But despite a potential ray of light from the census case, decided at the end of the term on Thursday, there is good reason to be skeptical that the chief justice will be willing to put the interests of American democracy over those of his party.

In that ray of light, Roberts voted with the court’s four liberal members to prevent the Trump administration from adding a question about citizenship to the 2020 census, which Census Department evidence suggests would significantly decrease minority response rates (which is, we now know, exactly why it was added). If the decision stands — and the president has already suggested he will seek to delay the census and add the question anyway — Roberts would indeed deserve significant credit.

However, it would be premature to give Roberts credit for standing up to Trump even within the narrow confines of the census case. Roberts did not join the opinion written by Stephen Breyer, which would have completely ruled that the addition of the citizenship question was “arbitrary and capricious,” effectively eliminating any chance that it would appear on the 2020 census. Instead, he rejected the Trump administration’s obviously ridiculous claim that it was merely trying to enforce the Voting Rights Act more effectively, but invited the Commerce Department to offer another, more “reasoned” justification.

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It is possible that Roberts will continue to stop the flagrantly racist attempts to tamper with the census; but it is equally possible that, given the opportunity, he will allow the Trump administration to proceed with such a question if it comes up with a pretext that isn’t quite as obviously dishonest.

Still, even if Thursday marks the end of the citizenship question, it will be the exception rather than the rule of Roberts’ record on the court because most often, when faced with the choice between democratic values and the partisan interests of the Republican Party, he has consistently sided with the latter — including in another case decided on Thursday.

In that case, Rucho v. Common Cause, Roberts wrote a 5-4 opinion arguing that the court could not consider the constitutionality of even the most extreme partisan gerrymanders. States like Wisconsin and North Carolina can permanently entrench Republican majorities that are effectively impossible for even solid majorities of the electorate to displace, and the Supreme Court has declared that it will do nothing.

Practically — though the case also involved a Democratic gerrymander in the state of Maryland — since it is much easier for gerrymanders to favor rural and exurban parties than predominantly urban ones, this allegedly apolitical decision will massively favor the Republican Party and, of course, the white voters it increasingly exclusively represents.

Which, of course, brings us to voting rights: Six years ago this week, Roberts authored one of the worst decisions in the history of the Supreme Court, Shelby County v. Holder. The decision gutted the most important section of the Voting Rights Act, which is the most important civil rights legislation passed since Reconstruction. Roberts held essentially that Congress had exceeded its explicit authority to enforce the 15th Amendment’s prohibition on racial discrimination in voting because its remedies had been too effective and made race-based disenfranchisement less of a problem.

To state the rationale of the court’s opinion is to refute it: As Justice Ruth Bader Ginsburg observed in her unanswerable dissent, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” And Roberts’s prediction that race-based discrimination in voting was no longer a major issue has proven to be howlingly wrong, but wrong in a way that benefits the Republican Party.

And the story gets even worse. In Shelby County, Roberts essentially pulled a bait-and-switch. While Roberts threw out Section 4 — which required jurisdictions with a history of discrimination to get approval from the Department of Justice before changing their voting laws — he emphasized that it was still possible to combat discrimination by suing under Section 2, which forbade racial discrimination in voting. But in 2018, Roberts joined a 5-4 decision written by Justice Samuel Alito that made proving discrimination under Section 2 effectively impossible. Heads or tails, the Republican Party wins and equal access to the ballot loses.

Roberts’ preference for Republicans over democracy goes yet further, though. Earlier this term, in Gundy v. U.S. — along with Justice Clarence Thomas — Roberts joined a dissent written by the radical libertarian Neil Gorsuch that would revive the so-called nondelegation doctrine. The doctrine, which has been moribund since 1935, would allow the Supreme Court to throw out executive regulations on the basis that Congress has not delegated its authority clearly enough.

Given that Congress, in fact, made a clear policy choice in the law under review in Gundy and merely delegated a practical detail to the executive branch, had Roberts got his way the court would be announcing a war with critical parts of the regulatory state like the EPA. And since Brett Kavanaugh was not yet on the court when the case was heard and Alito strongly suggested in a concurrence that he was open to a radical revision of the nondelegation doctrine, this war is likely coming.

In other words, Roberts has made it so that gerrymandering will make it difficult for majorities of Democratic voters to get a majority of the House of Representatives, and the constitutional malapportionment of the Senate makes translating electoral majorities into legislative majorities even more difficult. And if a Democratic president tries to use the regulatory authority granted by Congress to make policy, John Roberts is signaling that he and his fellow Republicans will often stop that, too.

If Roberts has his way, Republicans won’t ever need to attract majorities to keep winning elections, and if Democrats somehow overcome the electoral obstacles, they often won’t be allowed to govern. However the census case comes out, make no mistake: John Roberts is no friend of American democracy.