Chief Justice John Roberts is Not a Moderate

Chief Justice John Roberts

“…Judges and Justices are servants of the law, not the other way around.  Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical.  They make sure everybody plays by the rules, but it is a limited role.  Nobody ever went to a ball game to see the umpire.” -Chief Justice John Roberts

Justice Roberts famously stated “I will remember it is my job to call balls and strikes, and not to pitch or bat” when he was confirmed to the highest court in the land under the Bush Administration back in 2005. Today, he is considered to be one of the more moderate justices and many feel that he has lived up to his claim that he would “call balls and strikes”.

Liberals should view this for the dangerous facade that it is.

Justice Roberts is not an umpire who is neutrally managing the actions of two teams.

Justice Roberts is politically motivated, just like every judge that came before him.

The courts are political tools and they are being wielded effectively by conservative politicians like him.

Liberal agendas are in jeopardy because so many of us have bought into this story of judicial neutrality.

Don’t let Justice Roberts’ occasional break from party lines lull you into a false sense of security. This tendency is only an illusion of being moderate. This illusion helps shift our courts to the right.

Justice Clarence Thomas is the longest serving justice, and he demonstrates unyielding adherence to conservative party values. Justice Roberts simply maintains his position to appear moderate by contrast. Even when he is supposedly “reaching across the aisle”, like when he joined the liberal justices to defend the ACA, he does so as the Chief Justice. This is important because that means he writes the majority opinion, which will be in the conservative interest because he is a conservative. His opinions set precedent that can be latched onto down the line.

This enables seemingly unrelated progressive wins to be overturned, a strategy we’ve seen effectively employed to weaken Roe v Wade over the years.

We’ve been largely ignoring this tactic for years.

Because of this fact, the push for voting restrictions is seeing success. Rucho v. Common Cause is a great example of my point:

Justice Roberts wrote the majority opinion on this decision that ruled the courts don’t have the authority to stop partisan gerrymandering. This seems like an equal party decision on its face, but it removed a notable check on legislative authority by the judicial branch of government. Our system of checks and balances relies on courts enforcing proper practices, but this willfully removes that check on Congress. As a result, congress is now free to continue operating in the manner that allowed a conservative minority to maintain political power to begin with.

Rucho was NOT a politically neutral decision, but a calculated effort to continue the conservative project to elect Republicans. The opinion of the court in Rucho contains language that will allow future prosecutors to undermine progressive projects with no interference from the courts. With no contestation to gerrymandering, the minority party will continue to get elected even with fewer votes. They will continue to scale back election rights, and continue to place more judges to continue the cycle.

We let them do this uncontested whenever we get distracted…and they know it. They will keep “owning” you to keep you distracted.

Justice Roberts puts forward that his decision was based on partisanship not being inherently problematic. He claims that drawing the line at the precise moment that partisanship goes too far is impossible.

Baked into this reasoning is a definitive political lean that accepts, even anticipates, partisanship.

Justice Roberts’ claim protects a real conservative advantage. It’s no coincidence that this majority opinion was written by a conservative justice who was elected by a conservative president. It is also no coincidence that it was supported along party lines.

If an equal party decision was truly the goal, ending gerrymandering entirely would have accomplished it. That didn’t happen though, and now gerrymandering has no checks against it outside of the legislative branch. The same branch run by officials elected through gerrymandering.

Let me say this again, and very clearly…Justice Roberts is not a moderate, and the courts aren’t politically neutral.

I want you to understand how effective this veneer is, and how problematic. Justice Roberts’ is a savvy political mind who poses a danger to liberal values.

Liberals should be paying a far greater amount of attention towards him and his tactics, as well as the tactics of the right. We should be learning from them.

I’ll give you an example of where we can learn: the Federalist Society walked Justice Anthony Kennedy out the back door, and Trump nominated now-Justice Brett Kavanaugh. Justice Ruth Bader Ginsburg did the opposite and refused to step down when she had the chance during the Obama administration. This led to Trump nominating now-Justice Amy Coney Barrett.

We went from a two-term president selecting two justices to a one-term president selecting three. We will be feeling that for generations to come.

Stephen Breyer needs to retire, or we may watch this happen again. He is refusing to learn the lesson from Justice Ginsburg’s unfortunate passing. He is leaving us in a position to have him potentially replaced by yet another conservative justice.

The 6-3 super majority is already undermining voting rights. They will have this majority for the foreseeable future because they are appointed for life.

We can expect more cases like Cedar Point Nursery v Hassid. The court decided in favor of land owners that unionizing efforts were equivalent to a per se taking of property.

This is more insidious than it seems.

The argument relies on slave owner logic, ultimately reaching its conclusion by assuming that the productivity of people, in this case farm workers, is something land-owners own. The decision was made along party lines. You can expect to see more of that in the future. The courts aren’t politically neutral.

Conservatives use reasoning like originalism and textualism to make progressive interpretations of the law seem unconstitutional.

We as progressives have no real response to the Federalist Society. We are expected to focus on the more popular legislative and the executive branches of government. The stranglehold on the judicial branch by the right is real. Now they are trying to cement it with high-minded rhetoric.

Justice Roberts is an intelligent operator who I believe to be fairly honorable within his own world. But as Chief Justice, it’s a world where he literally enforces the rules. It is important that we stop thinking that he is invested in good faith arguments on the topics we value.

Unless it’s a concession, he isn’t.

Justice Roberts fights for his side, and we should expect him to. Just like we should expect to fight harder for ours. Our judicial voice has been growing fainter since the days of the Warren Court, and it shows in our legislative authority.

We can expect to continue seeing Congress supporting power grabs by the right in the executive branch if we don’t act. We are so far behind right now that even if change came tomorrow, we likely wouldn’t see the results until our grandkids are our age.

This is largely because of the life long terms of supreme court justices.

We should be united around packing the courts, united around limiting supreme court justice tenure, and united around the fact that the court is a political tool that can be used to support and push more progressive policies, even if only indirectly.

We should show conservatives that we can play that game.

The truth is that the courts will move us one step closer to an autocratic society if we lose them. Fascism has been at our door a lot longer than Trump has. The right has been fighting for an autocracy since before even the Khaki-shirt days of Hoover.

Where we are politically is not an anomaly, it is a progression, and one engineered by people like Justice Roberts.

In Summation…

We need to see the bigger picture and start thinking strategically. The moral high road won’t create the change we desire. So, at the very least, let’s get #BreyerRetire trending so we can safely replace him before it’s too late.

Importantly, we should stop pretending that Justice Roberts is proof that the courts are balanced. I don’t want to end up regretting a 7-2 court majority if the right manages to take back the white house due to voting restrictions, do you?

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