Wednesday, June 3, 2015

Balls, Strikes and Judicial Moderation of Chief Justice Roberts

July 10, 2015

If we were to grade Chief Justice Roberts by his pronouncements on the role of a judge, he would get high marks.

In his confirmation hearings before the Senate Judiciary Committee in 2005, he famously stated that if confirmed:

"I will remember that it's my job to call balls and strikes and not to pitch or bat."

That was a promise, not only to the Senate but also to the American People. It was a promise that, if confirmed, he would interpret the law not enact legislation in the guise of judicial decisions. 

More recently, in his dissent in the 2015 Obergefell case he criticized the majority opinion stating:

“But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ’neither force nor will but merely judgment’.”

Consistent with these statements, Chief Justice. Roberts is reported to consider himself a model of judicial restraint.

Notwithstanding these high sentiments, the Roberts Court has evoked sharp criticism from highly-knowledgeable sources. In response to the Citizens United decision, concerning financing of elections, Professor Tribe of Harvard, certainly one of our most distinguished living constitutional scholar, on or off the court, wrote that the decision:

 "...marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent"  

Professor Waldman of NYU,  in his book about gun rights under the Second Amendment, used even stronger language referring to:

"... a hostile judiciary, misreading history, overinterpreting text, and imposing  political views in the guise of judicial philosophy."

Professor Koppelman, of Northwestern University, commented specifically on Chief Justice. Roberts (in a New Republic article):

“..Roberts is as much of a wild man as anyone on the Court. He is distinctive in the things that make him wild. But if you push the right buttons, restrained he isn't…The essence of Roberts’s restraint is this: He is less of a zealot than his colleagues on his right.  That isn’t saying much.”

The question then is whether Chief Justice Roberts has lived up to his rhetoric or whether the criticisms of these distinguished professors are justified.

Let us examine this question by looking at two constitutional cases, one concerning voting rights and the other concerning the funding of electoral campaigns, both touching the very sinews of our democracy. One case in 2013 (Shelby County) concerned the core provision of the Voting Rights Act which was first enacted in 1965 to implement the fifteenth amendment to the Constitution (a post Civil War amendment). The second case in 2009 (Citizens United) concerned the right of the government to restrict corporate political expenditures


To begin with Shelby County, the fifteenth amendment states:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude…."

The Voting Rights Act (VRA) was extended several times. Because it had been found that prohibiting specific devices, such as literacy tests, designed to discourage voting by African Americans, or other minority groups, merely led to the creation of new devices, the act employed a pre-clearance mechanism.

States, or subdivisions of states, that had a history of such discrimination became “covered jurisdictions” and could not adopt new voting rules without obtaining a pre-clearance from the Federal government.

In 2013 Chief Justice Roberts authored a decision in the Shelby County case that, in Justice Ginsburg's words, accomplished the "demolition" of that act, one of the most successful civil-rights laws in the history of the republic.
That he did so was hardly a surprise. Four years earlier he had authored a decision (Northwest Austin) concerning the interpretation, but not the constitutionality, of that act. Despite the fact that the act's constitutionality was not being decided, Chief Justice Roberts seized the occasion strongly to suggest that the court well might be ready to declare the act's pre-clearance requirement, or at least the list of states and subdivisions of states required to obtain Federal pre-clearance of changes to their voting laws, unconstitutional when an appropriate case came before it. He stated:

"...the Act imposes current burdens and must be justified by current needs...The Act also differentiates between the States, despite our historic tradition that all the States enjoy 'equal sovereignty'...a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets."
What is meant by these words? Stripped of the flowery language (which tends to obscure meaning) the Chief Justice seems to be saying that:

1.    A law that imposes burdens, such as the VRA pre-clearance requirement, must effectively address current problems, and
2.    When such a law applies to some states and not to others this must be justified by showing that the problems sought to be corrected are worse in the targeted state than in other states.

No one would argue with the sentiment that legislation should be well designed to deal with the problems it seeks to resolve. However, the chief Justice seems to be saying that if this is not the case the law will be declared unconstitutional.

Could he really be saying this? Article 1, sec.1 of the Constitution states:

All legislative Powers herein granted shall be vested in a Congress of the United States,

Cancelling legislation simply because it is not working as well as it might is part of the legislative process. Alternatively, Congress can decide that keeping old legislation in force, as here, is the best option available to it. It would take an extraordinary set of facts to merit judicial intervention in such a case.   Clearly, the congressional reenactment of the VRA in 2006 was light years short of this level. The Chief Justice’s “current burdens/current needs” test and his "equal sovereignty" test (neither of which is mentioned in the Constitution) serve only to obscure this fact. They are, in reality, merely slogans masquerading as constitutional principles.

The Chief Justice’s language was a notably unsubtle invitation, and a road map, to the covered jurisdictions to find one among them, that was not eligible to elect out of covered jurisdiction status, to bring a suit, based on the Chief Justice’s “ tests”.

The advice was followed. Shelby County, Alabama was the chosen jurisdiction. It was an acknowledged sinner and thus was ineligible to bail out of covered status. It brought a suit, tailored to the Chief Justice's specifications, asking that the pre-clearance requirement be declared unconstitutional and permanently inoperable.
Chief Justice Roberts and the four other conservative justices surely were aware that a gridlocked Congress found itself unable to agree on an updated list of covered jurisdictions in 2006. Faced with this fact, the Congress overwhelmingly decided that continuing the old list would benefit the nation better then letting the pre-clearance mechanism expire. The members of congress had ample evidence that letting pre-clearance expire would result in many minority citizens being deprived of the vote.

The 2006 list of covered jurisdictions was passed after extensive hearing demonstrated to the satisfaction of the legislators that the existing pre-clearance list was still a valid classification and would continue to be effective. For example:
Between 1982 and 2006, the Department of Justice objections blocked over 700 voting changes based on a determination that the changes were discriminatory. Congress found that the changes blocked by pre-clearance were “calculated decisions to keep minority voters from fully participating in the political process.”

 The VRA, with its list of covered jurisdictions, was adopted with a House vote of 390 to 33 and a Senate vote of 98 to 0. President Bush signed the bill calling it:
 “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.”

By 2006, minority voting conditions in the covered jurisdictions had vastly improved compared to 1965. Such conditions were not worse in some of the covered jurisdictions than they were in some non-covered jurisdictions.

But it was apparent from the evidence that Congress had amassed that this was not solely due to a change of generations and of attitudes in the covered jurisdictions.  It also was due to the operations and dissuasive effect of the pre-clearance requirement.

The report of the House Judiciary Committee began with a lengthy summary of the improvement of voting conditions in the covered jurisdictions since the act first was enacted in 1965 and went on with an even lengthier summary of the extensive evidence that the act still was needed in these jurisdictions to preserve those gains.

Chief Justice Roberts, together with the four other conservative justices, responded by holding that the particular list of covered jurisdictions, which had been re-adopted by the congress in 2006, was more than forty years old, was outmoded, did not fit the current situation in the covered jurisdictions and its use therefore was unconstitutional.

The Chief Justice, borrowing heavily from the first part of the report and paying little attention to the second part, described a situation where the need was not present. Without ever being explicit on the point, the Chief Justice described at some length the improved state of minority voting in the covered jurisdictions as if it were a satisfactory condition kept in being by the wishes of the state and local governments concerned and not by continued oversight by the Federal government.

Without access to any facts unknown to Congress, and not citing any known constitutional doctrine, Chief Justice Roberts substituted the judgment of five lawyers to that of 488 members of congress and the president of the United States. He held that Congress ‘finding that the covered jurisdiction list remained a valid list was incorrect and that its continued use would be unconstitutional.

This decidedly was not calling balls and strikes.

Congress ‘action was a proper exercise of the legislative power. That five justices voted to overturn it
Is little short of outrageous and calls to mind Thomas Jefferson’s words nearly 200 years earlier in a letter to William Jarvis:

 “You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy


 It is very difficult indeed to reconcile chief Justice Roberts ‘actions in the Shelby County matter with his admonition of the majority in the Obergefell case not to act as a legislature. In essence, in that case, the majority merely held that the words of the Fourteenth Amendment:

“nor shall any State… deny to any person within its jurisdiction the equal
protection of the law”

meant that same-sex couples were to have equal rights to the  benefits of laws concerning marriage as are available to opposite-sex couples. That, at the very least, is a reasonable interpretation of the words of the Constitution. One can agree (as I do) or disagree with the decision, but it was not making law. It was interpreting the words of the Constitution.

Let us make a side-by-side comparison of Chief Justice Roberts’s view that the majority in Obergefell was legislating rather than making a judicial decision and the assertion that he, and the four other conservative justices, overtly were doing so in Shelby County:


Shelby County

1.    Invented two new “constitutional tests” not mentioned in the Constitution.
“Equal protection of the law” means same-sex couples are entitled to the same benefits of laws concerning marriage as are opposite-sex couples.

2.    Inserted those “tests” in an opinion on another matter as an obvious invitation to bring a suit attacking the VRA

3.    Without citing additional facts, declared that Congress wrongly decided that continuing the existing list of covered jurisdictions was justified

4.    Held that  the continued use of such list would be  unconstitutional

I have referred above to the Chief Justice’s actions as injecting the court into the legislative process. Now I will go further. Overruling the congressional finding was certainly one of the most blatant examples of judicial legislation in the history of the Supreme Court, one that justified Thomas Jefferson’s words nearly 200 years earlier in a letter to William Jarvis:

 “You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy

The five justices had to know that demolishing the VRA pre-clearance mechanism would result in many previously covered jurisdictions adopting discriminatory voting legislation, and this occurred. The Brennan Center for Justice of NYU School of Law reports:

“…most of the feared consequences have come to pass — including attempts to: revive voting changes that were blocked as discriminatory, move forward with voting changes previously deterred, and implement new discriminatory voting restrictions.”


The second case for our examination is the 2008 Citizens Union case where Chief Justice Roberts, joined the four other conservative justices (he did not write the opinion), in holding that the words of the first amendment:

 "Congress shall make no law…abridging the freedom of speech, or the press
 to mean that the government cannot restrict the right of corporations to spend unlimited sums to support or oppose candidates for public office.

To arrive at this astonishing result, the chief Justice and the four other conservative justices had to find that corporations are people and that the spending of money on elections is a form of speech. A holding so far removed from the dictionary meanings of the words scarcely can be called the exercise of judicial restraint or the calling of balls and strikes.

This holding continues to do immense harm to our political system. The expressed theory of the five justices who adopted it was that corporations acting independently of any candidate should not be subject to governmental limitations on their expenditures. Such independence is extremely easy to counterfeit.  The entirely predictable result has been the birth of “Super Pacs sponsoring a single candidate, often openly formed at the request of that candidate, and able to spend unlimited sums to get the candidate elected

This has made it nearly impossible for candidates to high office who do not have access to huge funds to be elected. Reportedly, it has caused some members of Congress to resign because they are faced with the necessity of spending much of their time raising funds from their first day in office.

The New York Times of July 10, 2015 reports that Jeb Bush already has already raised more than $114 million, almost all of it through a super pac that Mr. Bush’s aides helped set up.

If the chief Justice, and the other four conservative justices did not foresee that this would happen, they are exceedingly naïve. If they did foresee it, they were willing to disregard he abysmal consequences. In either event, the decision calls into question the correctness of their appointments to the court.

It is without doubt one of the worst decisions in the court’s history. Once more, it recalls Jefferson’s comment which is quoted above.


After the end of the 2014-2015 Supreme Court term some commentators detected a leftward trend on the  court, citing King v Burwell (upholding Obamacare from a malicious attack on tissue-thin technical grounds) and Obergefell (according constitutional protection to same-sex marriages). The Chief Justice and Justice Kennedy voted with the four liberal justices on the first and Justice Kennedy voted with them on the second.

However, that does not undo the fact that The United States is a significantly less democratic country because of the Citizens United and Shelby County decisions, and that gun violence has become a daily occurrence in the United States due, in large measure, to the 2006 overly-broad reading of the second amendment by the chief Justice and the other four conservative justices in the Heller case.

The bottom line is clear. We are not discussing a percentage game. Who would patronize a physician who prescribed helpful treatments 96% of the time but routinely did his patients serious harm the other 4%?


PTKAP'S other blogs concerning the Roberts court, gun control and taxation are listed