John Roberts Wants You To Stop Believing Your Own Eyes

John Roberts has spent years whining about how totally unfair it is that people claim he and his colleagues rule based on partisan leanings. He did it in 2014. He did it in 2017. He did it in 2019. Hell, he did it a couple months ago too. So it’s little surprise that he’s out there whining about people calling the Court partisan yet again.

Speaking at a conference for lawyers and judges in Hershey, Roberts said the Supreme Court is required to make decisions that are not popular and bemoaned that there is not a better understanding among the public of how the court operates.

“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. “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.”

While he conceded that people have a right to criticize the court and its decisions, he added that there is a tendency to focus too much on politics.

“We’re not simply part of the political process, and there’s a reason for that, and I’m not sure people grasp that as much as is appropriate,” Roberts said.

The timing here is something else — a week after an obviously partisan ruling in Callais, which stripped away Section 2 of the Voting Rights Act. Notably, Roberts himself had pointed to Section 2’s existence back in 2013 as the reason that they could kill off Section 4 of the Voting Rights Act (which required a pre-review of voting maps for racial bias). And now he helped kill Section 2.

If it were just about making decisions that are “not popular,” then… why are nearly all of his “unpopular” decisions quite clearly in support of one party’s goals and ideology? Any look at the details shows why people conclude that Roberts has a partisan bent to his rulings:

• In the 15 precedent-overturning cases with partisan implications, in other words, Justice Roberts voted for a conservative outcome 14 times (93%).
• Chief Justice Roberts is one of only two justices since 1946 to support 100% of decisions overturning precedent that led to conservative outcomes.
• Roberts’s record in precedent-overturning cases is the second-most conservative among 37 justices who have ruled in at least 5 precedent-overturning cases since 1946. With 84% conservative votes in precedent-overturning cases, Roberts only trails Justice Alito’s 88%.

Gee. I wonder why people think the Court is partisan, chief?

And, on Monday (as we pointed out) Roberts joined Alito and the conservatives on the bench to break standard practice and precedent, supporting Louisiana ripping up its election maps to favor more Republican seats — even as voting had already started — even though, just months ago, he and the conservatives had said that Texas’ map (deemed unconstitutionally based on race by a Trump-appointed judge) couldn’t be torn up because it was “too close” to an election and voters needed “certainty.” There is literally no explanation for December being too close to change the maps while May somehow required rushing a map change… in the same election… other than the partisan leaning of those two decisions.

Indeed, as Liz Dye points out, we have decades of the Supreme Court doing exactly this: it allows for election map changes when it will help Republicans, but says “no can do, too close to an election” whenever it’s expected to help Democrats:

The Court’s conservatives routinely scold lower court judges for changing voting rules too close to an election. This violates the Purcell principle, named for a 2006 case in which the Court rebuked the 9th Circuit for blocking Arizona’s voter ID law too close to an election and causing voter “confusion.” For 20 years, the Supreme Court’s conservatives have selectively invoked Purcell to allow elections to proceed using maps that courts have already deemed to be unlawful.

In 2022, after lower courts struck down Alabama’s electoral map for violating Section 2 of the Voting Rights Act and disenfranchising Black voters, the Supreme Court intervened to allow Alabama to use the unconstitutional map anyway in the midterms. In 2023, the Court agreed that the maps were illegal under the VRA — but only after they’d let Alabama Republicans use them to take back the House.

Just five months ago, the Court cited Purcell when it rebuked a federal district court for “improperly inserting itself into an active primary campaign” by blocking Texas’s unconstitutionally racial gerrymander.

But given the chance to insert themselves into an acting primary campaign, they regularly jump in with both feet. And in fact they’re equally happy to stomp into the primary itself.

So, chief, if you want people to stop thinking the Court is partisan, maybe stop making such obviously partisan decisions.

Oh, and also maybe talk to your colleagues. After all, at the very moment you were whining about people thinking the court was partisan, your colleague Justice Neil Gorsuch was appearing on a famously rightwing podcast to talk about why “young conservatives must have courage to stand by their beliefs.” Sounds kinda partisan.

And just a few weeks ago, your colleague Justice Clarence Thomas gave a speech arguing that progressives were an existential threat to America.

Gosh. Why would the public think some of you are partisan. I wonder!

And, let’s not forget that Thomas’s wife was supportive of the attempt to steal an election from the rightfully elected Joe Biden in support of the failed Republican campaign of Donald Trump. And then there’s Justice Alito’s wife who, somewhat infamously, flew political flags outside their home, including one in support of the January 6th insurrection.

A real mystery, truly. Who could possibly think that there might be partisan bias? How unfair.

But you keep saying how unfair this is. Year after year, conference after conference, the same complaint: people just don’t understand us.

At some point, Chief Justice, the more productive question isn’t why the public doesn’t grasp your supposed non-partisanship. It’s why — after decades of rulings that break almost exclusively in one direction, colleagues who deliver speeches about the courage of young conservatives, and the existential threat of progressivism, and spouses flying insurrection flags — you’re still surprised that they don’t.

Maybe the problem isn’t the public’s understanding. Maybe it’s the Court’s behavior.