The Rule Maker-in-Chief: John Roberts and the Myth of the Umpire Judge
Last Friday, Jamelle Bouie of the New York Times wrote a stinging essay criticizing the Roberts Court. As to the Chief himself, Bouie quoted from an article I had written:
And there is the hubris of Chief Justice Roberts, who, the legal scholar Eric J. Segall writes, has "led the court to coerce both state and federal governments to abide by his personal preferences, whether or not positive legal sources supported those decisions and at times even when prior law quite clearly did not justify the chief’s opinions and votes."
My description of Chief Justice Roberts is at odds with how Roberts has said judges should act. At the defining moment of his professional life, after he had been nominated to be the Chief Justice of the United States Supreme Court, Roberts testified under oath before the Senate Judiciary Committee on national television discussing his core judicial philosophy. He infamously summed up his perspective on the appropriate judicial role as follows:
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.
Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have modesty to be open in the decisional process to the considered views of their colleagues on the bench.
Roberts made these comments in 2005. Judges don't make legal rules but just apply them, and judges should employ modesty when evaluating precedent.
Below I describe just a smattering of country-changing constitutional rules that Roberts has articulated in his own opinions that he created out of whole cloth and were not fairly derived from text, history, tradition, or precedent. In these cases, Roberts was the commissioner, the umpire, the owner, and the player.
One significant disclaimer. This blog post is only concerned with rule-creating opinions Roberts actually wrote, not the many rule-creating opinions he voted for and supported. In other words, if we look at the totality of Roberts's votes, as opposed to just his own opinions, his alleged "umpiring" looks even worse.
Affirmative Action
Parents, teachers, students, and school board officials in Seattle and Louisville tried for years to address the rampant de facto segregation of their public schools. Both cities voluntarily used racial criteria for a small number of students to further the goal of integration. The Court struck down these important efforts in Parents Involved in Community Schools v. Seattle School Board. At the very end of the opinion, Chief Justice Roberts set forth the key rule of the case: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Eventually, in SFFA v. Harvard, Roberts applied this rule to effectively end affirmative action in America.
The word race does not appear in the part of the 14th Amendment (the equal protection clause) that Roberts used to strike down affirmative action; there is no history or tradition of color-blindness in this country; and it is definitely possible that the government using express racial criteria to make up for slavery, segregation, red-lining, and institutional racism is necessary to obtain a less racist country. But whether Roberts is right or wrong as a policy matter, make no mistake, the rule of these cases has nothing to do with text, history, or precedent.
It would be like major league baseball umpires getting together and saying from now on no player may hit more than three singles in a game. Such a rule would not be supported by baseball's implicit or explicit rules or any history or tradition.
The same is true for color-blindness as a constitutionally made-up limitation on the ability of political officials to reduce the racism that still haunts our country.
Religion
In three cases starting with Trinity Lutheran v. Comer, Chief Justice Roberts adopted a non-textual, anti-historical rule that if a state wants to provide financial support to children attending non-religious private schools, it must provide the exact same support to religious schools, despite any establishment clause concerns the state may have. This rule of constitutional law, infringing on states' rights and making the free exercise clause a general equal protection provision, has only one source: the religious preferences of the Court's conservatives, especially Chief Justice Roberts.
If he is an umpire, Roberts has allowed religious groups four strikes instead of three.
Voting Rights
I have written extensively here and elsewhere about the disaster that is Shelby County v. Holder. In addition to gutting one of the most important laws in American history (re-enacted by a unanimous Senate, overwhelmingly in the House, and signed by a Republican President), and in addition to reversing a major prior case through the misleading use of ellipses, Roberts articulated the rule that Congress must have a strong, as opposed to appropriate or reasonable, justification for treating some states differently than others when it comes to voting rights and procedures. The actual constitutional texts in question give Congress the power to enact all "appropriate legislation" to enforce the 14th and 15th Amendments.
There is no text, history, or precedent to support such an outrageous interpretation of the Reconstruction Amendments. The idea that mostly Southern states with awful histories of slavery, segregation, and institutional racism cannot be treated differently than other states under the very Amendments they had to agree to support to come back into the Union is the equivalent of a baseball umpire deciding that if the third strike only touches a corner of the plate, the umpire can call it a ball. Nothing in the rules or history of baseball would support such a rule, and the same is true for what has come to be known as the made-up, unprincipled, and unjustified rule of equal state sovereignty.
The Commerce Clause
Congress has the authority to enact legislation regulating "commerce among the states." In 2012, the health insurance/health care industry spent over a trillion dollars affecting the commerce of every state. In addition, there was longstanding precedent that Congress could regulate local activities that substantially affect commerce (in conjunction with the Necessary & Proper Clause), and that the relevant legal standards required the justices to look at the act as a whole, not at just one or two parts of the law.
The Patient Protection and Affordable Care Act, over 1000 pages long, required millions of Americans who were not otherwise covered to buy health insurance or pay a special tax and comprehensively regulated health care and insurance. In 2012, it was believed by virtually all experts in the field that the law as a whole could not work without the required mandate. All the justices accepted that premise in their opinions.
The word mandate does not appear as a limit in the constitutional text and the first Congress used numerous mandates, including requiring able-bodied men to purchase militia style guns. Meanwhile, of course, the federal government has required us to pay taxes and register for the draft, both of which are "mandates." When this argument was made forcefully by Justice Ginsburg in dissent, Roberts responded in a footnote in NFIB v. Sebelius:
The examples of other congressional mandates cited by Justice Ginsburg are not to the contrary. Each of those mandates—to report for jury duty, to register for the draft, to purchase firearms in anticipation of militia service, to exchange gold currency for paper currency, and to file a tax return—are based on constitutional provisions other than the Commerce Clause.
That's it. No explanation as to why mandates are permissible for numerous constitutional provisions but not the commerce clause. Roberts completely failed to address this originalist argument. It would be like one umpire saying to another, we are applying the wrong rule to this infield fly ball and the other umpire responding "yes, but the rule you cite applies only to games that have been played on days that end in the letter 'Y,' so I don't want to hear it."
Roberts just invented this "no mandates under the commerce clause" rule based on nothing other than his political preferences about the relationship between the Congress and the states. (It's true that he parted company with the other conservatives and voted to uphold the Act as an exercise of the taxing power, but in the meantime he had struck a blow against the more commonly used commerce power.)
Separation of Powers
Chief Justice Roberts has led the charge to make it much more difficult for federal agencies to perform their jobs. There are far too many new rules regarding the relationships between and among the three branches of the federal government to recount here. But the following is one of the worst.
The Constitution is completely silent when it comes to the firing of federal officers. For decades, the Court allowed Congress to limit the President's ability to fire leaders of multi-member independent administrative agencies, Then, in Seila Law LLC v. Consumer Financial Protection Bureau, Chief Justice Roberts announced a brand new rule: the President must have unilateral and unlimited authority to fire a single head of an independent federal agency.
This new rule is not supported by text, history, or precedent of any kind. As the dissent observed, "the Constitution does not distinguish between single-director and multimember independent agencies. It instructs Congress, not this Court, to decide on agency design."
Roberts tying Congress's hands this way would be the equivalent of a baseball umpire vetoing a line-up for one of the teams. Umpires have no authority to second-guess those line-ups. Likewise, the Court should have no authority to overturn reasonable federal rules about the structure of administrative agencies--a task assigned by Constitutional text to the United States Congress, not the Supreme Court.
Free Speech, Big Money, and Elections
In McCutcheon v. FEC, Roberts wrote the majority opinion striking down limits on the total amount a person can contribute to different political candidates or political action committees. The Republican National Committee challenged the law, as did a private citizen who wanted to contribute more than the relevant federal law allowed. Roberts equated writing checks to political candidates with speaking about politics and also held that the only legitimate government interest that can support campaign finance regulation is stopping direct quid pro quo corruption. But that rule of constitutional law has no basis in text, history, or precedent.
The bizarre notion that the government cannot regulate the spending of money in elections absent an explicit quid pro quo arrangement led Judge Richard Posner (now retired) to write in SLATE the following:
Can so naive-seeming a conception of the political process reflect the actual beliefs of the ... Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors.... Isn't this obviously a form of corruption?
The Roberts fabricated rule of McCutcheon would be like an umpire unilaterally deciding that no more than only eight players are permitted on the field instead of nine, a new and made-up rule. There is nothing in the history, or traditions of baseball that could justify such a departure.
The same is true for the holding that Congress may not limit the total amount of money individuals are allowed to spend on political candidates. This limit, not set forth by Congress but by the Court, is all about inventing rules, not applying them.
Immunity
The Constitution expressly states that members of Congress "in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
There is not a word in the United States Constitution suggesting immunity for the President of the United States. Yet, in the recent case of Trump v. United States, Chief Justice Roberts issued a ruling giving the President absolute immunity from prosecution after he leaves office for "core" executive acts and presumptive immunity for other "official" acts. He also announced the arbitrary and dangerous rule that evidence of motive cannot be presented to the court to distinguish official from unofficial acts, and evidence of other concededly official acts is inadmissable as well.
The Trump immunity ruling seems specifically calculated to help Donald Trump escape responsibility for his criminal acts. The evidentiary rulings are especially problematic and have no source in prior positive law. Roberts is acting more as a league Commissioner than an umpire and engaging in behavior not justified by his job description.
Chief Justice John Roberts is not an umpire, an institutionalist, a moderate, or a judge on a real court of law.
What Roberts is most, his defining feature, now and always, is that he is a Republican politician all the way down.