John Roberts Is The Driver Who Wants Credit For All The People He Didn’t Run Over

from the unkicked-puppies dept

John Roberts has a point: the Supreme Court—even this Supreme Court—sometimes gets things right. Maybe one could even fairly say it often gets things right. After all, just recently it produced good decisions in Case v. Montana, Cox v. Sony, and First Women’s Choice Centers v. Davenport, and arguably even Chiles v. Salazar, along with plenty more that have quietly taken their place in the annals of American jurisprudence with little fanfare but the staying power we look to the Court’s opinions for, to continue to speak well into the future about the contours of our law. These were decisions where there was significant accord among all the justices because the legal questions before them were just not that hard to resolve. Either statutory language, constitutional text, or previous precedent required certain results, and Roberts is correct: this Court is fully capable of producing them.

The issue, however, is that it doesn’t always. And when it doesn’t it is not because it’s getting tripped up by close calls where either the precedent or guiding text isn’t clear, or the facts are so unfortunate that they obscure what the law requires. The issue is that the law is as equally clear in cases where the Court produces deviant results as in the cases where the Court gets things right; it just doesn’t care to follow it consistently. If it wants a different result than what the law directs then that is the result it will find the votes for.

Roberts is of course also right that non-lawyers often can’t tell what the law indeed requires; the general public is much more likely to judge a decision based on how it affects the interests they favor. Which is why Roberts has a fair point to think the Court may be unfairly criticized in decisions like Chiles, First Women’s Choice Centers, or even 303 Creative, cases where interests many understand to be harmful to others nevertheless apparently prevailed. It is difficult, for instance, for non-lawyers to see how a win for those who discriminate is nevertheless a win for those who are discriminated against, because while a win for the former may seem like a loss for the latter in the short term, it’s the rationale being upheld by the decision that will ultimately amount to a more important gain for the vulnerable in the long term.

But one reason people are struggling to see these controversial but correct decisions as fortifications of their own future freedom is because they don’t believe that when their interests are at stake the Supreme Court will still apply the same principles this time in their favor. They fear that the Court will instead find a way to advance the interests it prefers, and it’s a fear that is eminently reasonable. The hypocrisy the justices regularly display in their jurisprudence when one of their favored interests is at stake forecloses any rational person having any faith in them as neutral jurists ably applying the law, even if it’s true that sometimes they are.

Roberts only has himself and his Court to blame for so many having that view. They have made it impossible for anyone to believe the Court will uphold principle and precedent because of how often it has not. It is happy to change the rules that we must all play by whenever it suits it, redrawing the rights we depend on as well as the ability to use the courts to shape them. And it’s not just laypeople who’ve noticed the problem but legal professionals. It’s lawyers, including members of the Supreme Court Bar who practice before them. It’s law professors, including those who have been teaching new generations of law students what were supposed to be timeless principles of American jurisprudence, which the Court so regularly and casually upends. It’s legal commentators, including those who specialize in watching this court. It is people who are experienced, if not expert—and if not at least as expert as anyone on the Court—in the American legal tradition who are calling foul. They are noticing how the Court keeps inventing arbitrary and imaginary rules, if not also facts, in order to arrive not where the law points but where the conservative justices steering the Court’s majority instead prefer to go.

It might be one thing if it were the rare case here and there in its busy docket where the Court has simply been sloppy in its jurisprudence. But the cases where the conservative majority has refused to produce jurisprudentially conservative results, instead elevating preferred outcomes over precedential reasoning, are hardly the exception; at this point it has become the apparently deliberate rule that when certain issues are on the table—partisan politics, reproductive freedom, LGBTQ+ rights, race relations, to name just a few areas where the conservative justices have particularly strong views—the Roberts Court will eagerly jump in to advance them, regardless of whether either substance or procedure—or consistency—even invites such an intervention, let alone their favored result. In fact it is fairly shocking to encounter the rare occasion where the Court has instead restrained itself—although it is certainly glad to when other interests the conservative majority is less dogmatically interested in advancing are instead on the table.

Furthermore, that its docket is so busy is entirely because the Court has abdicated any pretense of restraint, greedily helping itself to matters that historically would have been regarded as unripe for its consideration. In fact, it is a bit rich for Roberts to complain how the Supreme Court is being unfairly disrespected given the extent to which its new practice of aggressively insinuating itself in substantive adjudication of matters before there even is a lower court ruling or record ready for review has itself undercut the respect due the lower courts. What the Court has been doing, particularly with its Shadow Docket, goes far beyond the appellate review it is normally entitled to do. Not only does the Supreme Court’s incessant snatching of matters away from the lower courts prematurely arbitrarily diminish the lower courts’ power to render considered opinions on the questions before them, but it has also been having the practical effect of undermining their ability to speak with any authority on the law at all, let alone enforce it. Would only Roberts shed the same tears for the insult the lower courts have actually suffered as he does for himself as the cause of it.

Instead, and apparently without any capacity for introspection or self-reflection, he protests that the criticism increasingly directed at the Court is not also increasingly deserved. We should, he insists, be judging his Court based on what it gets right. But we do not celebrate a reckless driver for all the people he didn’t run over, or careless chef for all the diners he didn’t poison, or distracted doctor for all the patients he didn’t kill. In the American legal tradition we judge harshly those who cause injury to the public well-being, especially with behavior beyond the bounds of what law allows.

And with the Roberts Court there is so much to judge.

Filed Under: consistency, john roberts, partisanship, supreme court