Don’t Let John Roberts Fool You
By Mondaire Jones
The Supreme Court handed down some decisions this Term that, to those of us who have been accustomed to fearing the worst from the Roberts Court, were not awful. In those cases, to the surprise of many, Chief Justice John Roberts was on the right side of history.
With Roberts’ support, the Court struck down a Louisiana abortion restriction, blocked President Trump’s attempt to end DACA, and held that the Civil Rights Act of 1964 bars workplace discrimination on the basis of sexual orientation and gender identity. That had some commentators rushing to label Roberts a “moderating influence.”
Don’t be fooled.
John Roberts is a shrewd politician with a close eye on the Supreme Court’s institutional standing. He has a history of avoiding lightning-rod issues during Presidential election years that, if decided unfairly, would rile up the Democratic base. Famously, he upheld crucial provisions of the Affordable Care Act in 2012. In 2016, the Chief Justice did it again: with his backing, the Court unanimously punted on a religious freedom challenge to the ACA’s contraception coverage mandate, and declined to block an Obama Administration rule restricting toxic emissions. This year, Roberts has carefully scheduled oral argument for the latest challenge to the ACA one week after Election Day.
These cases are shiny objects that distract from the real, partisan work the Roberts Court is doing to entrench Republican power. Because when it matters most — when it comes to writing the rules of our electoral systems — John Roberts will always protect voter suppression schemes that maximize the GOP’s chances at the ballot box.
Roberts’ record on voting rights has remained remarkably consistent since he kicked off his legal career by trying to weaken the Voting Rights Act. If a law suppresses the vote and advantages Republicans, it is constitutional; if it protects the right to vote, especially for Black and Brown voters, it is unconstitutional.
Consider the following cases:
Crawford v. Marion County (2008): Photo ID requirements are constitutional, even when there’s no evidence of any voter fraud and obtaining an ID is costly and complicated for marginalized voters.
Shelby County v. Holder (2013): The heart of the Voting Rights Act, requiring pre-clearance of voting rules changes where there has been a history of disenfranchisement, is unconstitutional because racial discrimination is no longer a serious problem in the South.
Arizona State Legislature v. Arizona Independent Redistricting Commission (2015): Even as Justice Kennedy joined the Court’s liberals in upholding the constitutionality of independent redistricting commissions, Roberts dissented, contending that the Constitution forbids them. This does not bode well should Democrats enact H.R. 1, the For the People Act, in 2021.
Husted v. A. Philip Randolph Institute (2018): States can begin to purge voters from their rolls for exercising their right not to vote in two consecutive elections.
Abbott v. Perez (2018): States accused of intentionally enacting racially discriminatory election laws are entitled to a presumption of “good faith,” which can only be overcome by overwhelming evidence of discriminatory intent.
Rucho v. Common Cause (2019): Courts have no authority to stop partisan gerrymandering, no matter how severe and anti-democratic it is.
Chief Justice Roberts has not changed his anti-democratic tune, even in his so-called “moderate” recent Term. In April, at the height of the COVID-19 pandemic, Roberts and the conservative majority intervened to undo a one-week, health-based extension to Wisconsin’s vote-by-mail deadline. It tossed out thousands of absentee ballots and forced Wisconsin voters and poll workers to risk exposure to coronavirus — all so the GOP would have a better chance of holding onto a crucial seat on the state’s highest court. In the months since, the Court has issued decisions similarly hostile to voters, concerning Alabama, Florida, and Texas.
After retaking the House in 2018, Democrats demonstrated their commitment to strengthening our democracy by passing the For the People Act (H.R. 1), which includes measures like automatic voter registration to enfranchise nearly 50 million voters nationally; public financing of congressional campaigns to reduce the outsize influence of big money; independent redistricting of congressional districts in lieu of partisan gerrymandering; and prohibitions on voter suppression. But given the Roberts Court's track record, there is every reason to believe that its far-right, anti-democratic majority will come up with pretextual reasons to strike down crucial provisions.
That’s why we can’t fall for John Roberts’ stratagem of misdirection. We can’t lose sight of the fact that the partisan majority on the Supreme Court will take every opportunity to lock Democrats out of power. Voters are sending a strong, progressive Congress to fight for our democracy. That Congress must be prepared to counter the Supreme Court’s attempts to block its duly enacted legislation -- including passing legislation to expand the Court. If we don’t in the 117th Congress, we may not get another chance to govern.
Mondaire Jones (@MondaireJones) is the Democratic nominee for the U.S. House of Representatives in New York's 17th District.