The chief justice rose to the court’s defense during a legal conference on Wednesday. “I think at a very basic level, people think we’re making policy decisions, [that] we’re saying we think this is what things should be as opposed to this is what the law provides,” Roberts said, according to NBC’s Lawrence Hurley. “I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do. I would say that’s the main difficulty.”
Let’s start by clarifying the terminology here, since it matters more than it might seem at first glance. There is a strong tendency in American parlance to use the term “political” in a purely pejorative sense, often with the implication of unsavoriness, partiality, or even a whiff of corruption or bias. Sometimes people use it when they actually mean “partisan,” or merely to describe something that expresses an opinion or viewpoint with which they disagree.
This negative connotation of “politics” is so deeply engrained that it’s not worth challenging people about it in passing conversation. When someone says, “I don’t want to talk about politics,” for example, what they often mean is “I don’t want to be disagreeable in a social setting.” That’s perfectly fine. But sometimes people think “politics” is just what other people are doing or saying, while their own views and beliefs are “common sense.”
Some legal scholars have described this worldview as “judicial self-aggrandizement.” In 2023, Georgetown University law professor Josh Chafetz argued that the justices “hold themselves out as a pure, reason-based alternative to the messy business of the ‘political branches’” as a means to empower themselves. “In the judges’ presentation, it is not the courts taking power for themselves; the courts are simply neutral conduits for the law, which happens to limit the powers of the other institutions,” he explained.
In a line of cases starting with 2016’s McDonnell v. United States, for example, the court has all but recognized a First Amendment right to pay-to-play politics by narrowing federal bribery laws to only “official acts” in their most literal form. The justices could have upheld the conviction on narrow grounds while signaling that more innocuous gifts, like taking someone out to lunch, would not qualify. They chose otherwise.
This freewheeling approach only applies to the other branches. In 2015, the Supreme Court upheld a Florida law that bars elected judges and judicial candidates from personally soliciting campaign donations. If Congress had passed an identical law that imposed the same restrictions on congressional and presidential candidates, I have little doubt that it would be struck down by this court in a heartbeat on First Amendment grounds.
The message from all these rulings is that Americans have no right to expect honest services from other government officials. They should not assume that lawmakers, governors, or presidents will ever act in the public interest, to exercise their best independent judgment, or to conduct themselves with any sense of civic integrity. Nor should Americans count on the law to punish public officials for misconduct. If ordinary people want to get something out of their government, they should tip early and tip often.
Even if Congress were more functional, the Supreme Court has given itself free rein to second-guess the legislative branch’s judgment and discretion. The major-questions doctrine mainly curbs executive policymaking, but it also substantively narrows Congress’s power as well. To survive its vague and subjective terms, lawmakers must pass new laws for new circumstances instead of allowing existing laws to be applied in novel ways. The Supreme Court has only ever applied this doctrine to Democratic presidents; half of them refused to use it to strike down Trump’s tariffs despite the clear opportunity to do so.
His own policy preferences led him to sharply narrow the scope of waters protected by the CWA. “Congress, the majority scolds, has unleashed the EPA to regulate ‘swimming pools and puddles,’ wreaking untold havoc on ‘a staggering array of landowners,’” Justice Elena Kagan wrote in a separate opinion that castigated Alito’s framing. “Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.”
Nor is it hard to conclude that the justices’ policy preferences are warping their procedures. Starting with Roberts’ own intervention in an EPA case in 2016, the conservative justices have routinely used the shadow docket to freeze progressive policies and, especially in Trump’s second term, accelerate conservative ones. They spent the entire Biden administration affirming nationwide injunctions from federal courts in Texas, only to nix them as an option for lower-court judges a few months after Trump returned to power.
Six of the court’s nine justices sit there because their predecessor timed their retirement to ensure an ideologically compatible replacement. Roberts himself owes his seat to a conservative legal movement that spent decades identifying potential nominees who could bring a particular ideological vision to the high court. They worked hard to elect senators and presidents to bring that vision about. Their labors have paid off.
His historically illiterate remarks validated every mote of skepticism that anyone left of center might have towards the high court. Indeed, Roberts’ challenge isn’t that Americans misunderstand the Supreme Court; it’s that a growing number of them understand it all too well. Americans are bound to obey the court’s rulings as a matter of law, but they are not obligated to respect or have confidence in an institution that does not respect them or the Constitution.
I have deeply regretted that stance ever since the Supreme Court held two years ago that presidents can commit crimes in office—a blasphemous and indefensible reading of the Constitution and a betrayal of our nation’s fundamental principles. Since then, I have concluded that expanding the court and breaking the conservative justices’ grip on American society is not only a necessity, but a moral imperative. Thanks to Roberts and his colleagues, I am far from alone.
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