May 15, 2019
By Robert Kuttner | May 15, 2019
Over to You, John Roberts. The future of American democracy may literally come down to the decisions of one man, Chief Justice John Roberts. That’s because all of Trump’s efforts to place himself above the law—stonewalling subpoenas, telling his people to defy contempt citations, making dictatorial claims about executive power—will eventually end up in court. The Supreme Court.
And as we all know, the current court is divided 5-4, with five far-right toadies and four beleaguered liberals. Though one of the five, Roberts, occasionally seems to have second thoughts about the Constitution, the democracy, and the reputation of the high court.
This sure as hell needs to be one of those times.
The signs are far from auspicious. Roberts has been utterly promiscuous in overturning settled law when it served Republican partisan and ideological purposes. He has had a view of executive power almost as extreme as Trump’s.
But occasionally, he gives defenders of democracy some hope. In NFIB v. Sebelius, where the court’s conservatives hoped to overturn the Affordable Care Act. Roberts voted with the liberals—sort of. He held that the ACA was not legal under Constitution’s Commerce Clause, but was OK under Congress’s power to tax.
However, Roberts opined, both the individual mandate and the required state expansion of Medicaid were illegal. Now, however, in a new pending case backed by the administration, conservatives argue that with the mandate gone, the ACA is no longer an example of Congress’s power to tax and should be tossed out in its entirety. So Roberts may either have outfoxed himself, or maybe was foxier than we thought.
Last November, Roberts professed to be offended at Trump’s characterization of an “Obama judge.” He declared:
We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.
But that was posturing. The high court is ideologically split, the five conservatives are shills for Trump, and Roberts himself is Exhibit A.
On the other hand, in three recent cases, Roberts voted with the liberals to deny high court review of lower court rulings that went against the right, but taking care to note that these were procedural decisions, not substantive ones.
In short, unless Roberts gets an attack of conscience, he is a slender reed on which to place the survival of American democracy. That said, he is a much classier act than Trump, and he’s what we have.