How Chief Justice Roberts Is Outmaneuvering His Critics

From a Washington Post column by Jason Willick headlined “How John Roberts is outmaneuvering his critics”:

Chief Justice John G. Roberts Jr. wrote a pair of contradictory major rulings in the Supreme Court’s just-completed term. That paradoxically might have helped him consolidate the conservative court’s authority and marginalize its liberal critics. There are uncomfortable lessons here about political legitimacy.

The chief justice laid down a constitutional marker last month by declaring for a 6-3 majority that the 14th Amendment prohibits race-conscious college admissions. “Eliminating racial discrimination means eliminating all of it,” Roberts wrote. All of it? Just three weeks earlier, writing for a 5-4 court in a Voting Rights Act case, Roberts unapologetically upheld the progressive use of race to create electoral districts.

The cases dealt with different facts and precedents, but it’s hard to reconcile the colorblind philosophy Roberts forcefully announced in ending the term with the race-conscious system he endorsed just before. If anything, using race to draw political lines is more pernicious than using it to help decide who gets into selective colleges.

In the redistricting case, Allen v. Milligan, Roberts wrote the opinion tossing a version of the congressional map that Alabama has used for three decades. He affirmed Supreme Court precedent that if a state draws districts without regard to race, it can nonetheless be forced to draw additional majority-minority districts to compensate for discrimination.

The rulings clash intellectually, but they might complement one another politically. If the chief justice wants the Supreme Court to wean the nation off progressive racial preferences, a ruling against rich and exclusive universities such as Harvard for anti-Asian discrimination is most likely to command popular support. An ABC-Ipsos poll found that more Americans support than oppose the decision by a 20-point margin.

If the Supreme Court had upheld Alabama’s congressional map, the decision would have been cast as an attack on Black voting rights (even though no one’s right to vote would have been affected). Such a decision might be just and legally required, but it would be easier to caricature and attack.

The Supreme Court’s critics in recent years have charged that it faces a “legitimacy crisis” because it is politically out of step with the country. This claim is meant to chasten the court’s conservative majority, and Roberts especially. But having raised the salience of the Supreme Court — and tied its legitimacy to its popularity — the institution’s critics find themselves in a vulnerable position when the court does something popular and consequential. Roberts appears to have done so on affirmative action, while avoiding a second race decision that could distract from the popular outcome.

The unpopularity of the court’s Dobbs decision last year overturning Roe v. Wade certainly inflamed sentiment against the conservative justices. But that sentiment was partly channeled into the political system, as voters enacted a patchwork of abortion policies at the state level and punished Republicans at the ballot box. It’s more important that a constitutional decision banning affirmative action nationwide commands public support, because the alternative to accepting that decision is not normal political engagement but defiance or subversion of the court’s writ.

Distorted expectations in a different elections case gave Roberts an easy opportunity to mollify the court’s critics. When the justices agreed to hear Moore v. Harper, on the power of state legislatures to set election rules, liberal commentators panicked that the case could facilitate another Donald Trump-style coup attempt. That was never a realistic possibility, but Roberts nonetheless won liberal plaudits for a reassuring opinion that mostly ducked the constitutional issue.

Rulings by the court’s six-justice conservative majority will test (and are testing) Democrats’ respect for the institution, it is true. But the court’s conservative turn has also enhanced Roberts’s standing. The presence of five other conservatives in polarized cases forces Roberts to join the conservative majority if he wants to write the opinion of the court. Instead of negotiating with the conservative bloc, this term he led it. The chief formulated his affirmative action opinion so cannily that Justice Clarence Thomas wrote separately to say he thought it overruled the court’s precedent while Kavanaugh wrote separately to say it did not.

The progressive wing of the court’s leftward drift might also help legitimate the conservative majority. Justice Elena Kagan wrote an unusually aggressive dissent blasting Roberts’s decision that blocked President Biden’s unilateral waiver of $430 billion of student debt. Kagan wrote that the ruling was “no proper role for a court” and “a danger to a democratic order.” This appeared to alarm Roberts, who wrote that her claims were “disturbing.”

They were certainly overwrought. The public can see the court is acting very much like a court when it adjudicates novel assertions of executive power. Policing the separation of powers between Congress and the executive branch is core to the judicial function, as Kagan recognized during the Trump administration. The ABC-Ipsos poll found that modestly more Americans approve than disapprove of the student loan decision.

The Supreme Court’s legitimacy is hotly contested, but under-theorized and poorly defined. Is the court legitimate when it reflects society’s prevailing beliefs — or defies them in defense of a higher principle? Is it legitimate when it polls well? Is it legitimate when it butts out of political controversies altogether? Or finds novel ways to assuage them?

There’s no comprehensive answer to these questions, which are as old as the federal judiciary. But the Constitution’s system of checks and balances means that multiple authorities — states, presidents, courts, congresses and private institutions — all compete for power and prestige. The Roberts court is under pressure from many sides. But at the end of another historic term, its constitutional turf seems well-defended. The court’s ideological antagonists will be left trying to attack the institution’s legitimacy under the guise of saving it.

Jason Willick writes a regular Washington Post column on legal issues, political ideas and foreign affairs. Before coming to The Post in 2022, he wrote for the Wall Street Journal and the American Interest.

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