The Veneer Of Legitimacy

Ever since the 2016 election, the Supreme Court has faced a crisis of legitimacy. The reasons for this are obvious enough, although not exactly all the Court’s making. As Tara Leigh Grove writes, “In 2016, the Republican-controlled Senate refused even to hold hearings on Judge Garland, President Barack Obama’s nominee to fill the seat left open after Justice Scalia passed away. Thus, critics argue, President Donald Trump’s subsequent nominee Justice Gorsuch sits in a ‘stolen’ seat. The 2018 confirmation process for Justice Kavanaugh was said to be problematic in several respects: Republicans withheld information about the nominee’s service in the White House and failed to adequately investigate charges of sexual assault and the nominee himself offered what many saw as openly partisan testimony in responding to the latter allegations. Through these confirmation fights, the critique goes, Republicans used underhanded means to place a conservative majority on the Supreme Court, rendering the institution itself (and, presumably, its decisions) less legitimate”.

The refusal to give Garland even a hearing was particularly suspect because that seat would have given the liberals a majority on the Court for the first time since the waning days of the Warren Court in the late 1960s. Worse, McConnell’s fabricated “principle” for refusing to seat Gorsuch relied on letting the American people have a voice in the decision in the 2016 election. Said McConnell, “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide”. Well, the American people spoke and 3 million more of them voted for Hillary Clinton than Donald Trump but because of the anti-democratic structure of the Electoral College, a remnant of slavery, it was Trump who was able to appoint Scalia’s replacement. In fact, four of the five conservatives currently on the Court were appointed by Republican presidents who lost the popular vote for their first term.

Kavanaugh’s appointment shifted the Court even further to the right. But beyond the problems with the confirmation process listed above by Grove, the vacancy he filled was only available due to the sudden retirement of Justice Kennedy, which itself fueled suspicions because of Kennedy’s son’s involvement with Trump’s business affairs through his job at Deutsche Bank in the 2000s and his ongoing social relationship with the Trump family. Kavanaugh’s ascension, however, did put John Roberts in the position of the “swing” vote on the Court, although that only meant the decisions would modulate between moderate and far right.

The Court’s legitimacy was further undermined by the Trump administration and, in particular, the Solicitor General, who brazenly lied to the Court about Trump’s Muslim ban and the origins of the Census citizenship question. In the first case, Roberts, as he so often does, laid out the approach the administration needed to take in order to get a majority opinion from the Court, upholding the Muslim ban on Trump’s third attempt. The citizenship question decision highlighted another favorite Roberts’ tactic, namely making a ruling on procedural grounds that effectively runs out the clock on the case. In the Census case, that meant ruling that the Trump administration’s reason for adding the citizenship question was “contrived” and therefore should not be included while also stating that “We do not hold that the agency decision here was substantively invalid”. That left open the theoretical possibility for the administration to come up with more plausible claims for adding the question while the reality was there was no time to do that before the census forms had to be sent out.

These two tactics allow Roberts, and now his two new conservative cohorts, to illustrate their supposed independence while never substantively setting any new precedents that would preclude a more conservative decision in the future. That became clearer than ever this year as the Court faced a docket of seemingly explosive cases that included DACA, LGQBT rights, voting rights, abortion, immigration, religion, gun control, and important separation of powers issues. As Dahlia Lithwick and Mark Joseph Stern write, “You can’t help but admire the deftness of Roberts’ ability to simultaneously split the baby, persuade both sides that they won, and score indisputable points for judicial supremacy, all while also achieving nothing immediate…The irony of Roberts’ endless maneuvering is that preventing the court from appearing political requires him to act politically. Brokering compromises behind the scenes, manipulating the docket to keep hot-button cases far away from the court, forecasting the impact of each decision on the election-these are inherently political acts undertaken to convince public that the court is apolitical”.

Nowhere was Roberts’ political maneuvering more evident than in his apparent switching sides to uphold the ACA in the middle of the case in 2012 when he realized the impact of ruling Obamacare unconstitutional. Roberts completely flipped his original position that the individual mandate, and therefore the ACA, was unconstitutional and essentially made a deal with the liberals that he would treat the mandate as a tax, thus saving the law. In return he would allow the states to opt out of Medicaid expansion, something that none of the lower courts had even addressed and wasn’t considered constitutionally controversial. (The consequences of that “splitting the baby” decision are tens of thousands dead Americans who would have lived if there had been full Medicaid expansion and, for Roberts, now having to confront the question of whether “eliminating” the “tax” of the individual mandate by reducing it to zero now makes the ACA unconstitutional when that case is heard next term.)

Roberts made his name in conservative circles as part of the DOJ in 1982 when he led the charge to ensure that Section 2 of the Voting Rights Act (VRA), which was up for extension, would require plaintiffs to show intent to discriminate, rather than just the effects of discrimination. As the Heritage Foundation put it, “No ‘pattern of discrimination case’ may be filed unless there is clear proof of an intent to discriminate”. Roberts himself declared, “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes”. One of the career attorneys working with Roberts at the DOJ at the time noted, “John seemed like he always had it in for the Voting Rights Act. I remember him being a zealot when it came to having fundamental suspicions about the Voting Rights Act’s utility”. Roberts lost that argument in 1982 but made up for it with the Supreme Court’s decision to gut the VRA in 2013.

It appears Roberts suspicions about the VRA extend to democracy itself. Ian Millhiser writes, “The Roberts Court isn’t just a deeply conservative body; it is a body at war with democracy itself. Republicans on the Supreme Court have hobbled a key provision of the Voting Rights Act, and unleashed a torrent of money upon our elections. They brushed off voter suppression laws, and turned a blind eye to partisan gerrymandering. One recent decision held that voting rights plaintiffs who allege that a law was enacted with racist intent must overcome a burden of proof so high that it may now be simply impossible to win such cases in the future”.

Roberts obsessive refusal to consider the effects of discrimination, relying only on intent, has allowed for the perfection of extreme partisan gerrymandering. This has resulted, for example, in Democrats winning 54% of the total vote for the Wisconsin State Assembly but only gaining 36% of the seats in that body. In the same election, Democratic congressional candidates won 53% of the total vote but only gained three of the eight seats in the Wisconsin delegation. The Roberts Court decision to uphold such gerrymanders has, in effect, legalized the nullification of democracy.

Led by the conservative majority, the Court continued its assault on democracy again this term. It’s decision to reverse a lower court ruling that would have allowed a six day extension for absentee ballots in the Wisconsin primary not only disenfranchised thousands of voters but also forced thousands of others to risk their lives by voting in person. There is at least some evidence that the Court’s decision created a spike in infections in Wisconsin. In addition, the Court, in its ruling, manufactured a postmark requirement for the receipt of absentee ballots that does not exist in Wisconsin election law. Textualism indeed. The Court also blocked another lower court decision that loosened the restrictive absentee ballot requirements in Alabama in response to the pandemic. The lower court had ruled that at-risk voters would not have to get witness signatures nor would voters over 65 have to provide a photo ID if they had not already obtained one. Again, the Court forced voters to risk their lives to cast their ballot. Both these decisions were 5–4 rulings with the conservatives carrying the majority. Finally, a unanimous Court refused to hear an emergency plea from Texas Democrats to expand absentee voting in that state for voters younger than 65, although they did not preclude hearing the case after the 5th Circuit Court of Appeals had finally ruled.

The denial of the Democrats’ emergency plea stood in stark contrast to the extraordinary number of emergency stays that the Court has granted Trump’s DOJ. The Court has received 31 emergency stay requests from the DOJ and granted 20 of them fully or in part, while rejecting only 8. In the 16 years prior to the Trump administration, a period equally split between Republican and Democratic administrations, there had only been a total of eight emergency stay requests. Stay orders from the Court are often unsigned and usually offer no substantive analysis of the case in question. As Justice Sotomayor noted in a heated dissent in an immigration case, “Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others”, namely President Trump. Some of these stays, implemented on what Steve Vladeck calls the Court’s “shadow docket”, are more important than the actual decisions they announced this year. Says Vladeck, stays “have become almost commonplace in the past three years, clearing the way for the president to proceed with many of his most controversial policies without a final determination of their legality”. For example, the Court granted the administration’s request allowing the transfer of military construction funds in order to build the border wall even as the case was being heard in the Ninth Circuit. Now, 11 months later, the Ninth Circuit has ruled that transfer unconstitutional but its decision is moot. The money has already been spent. Similar stays have had a similar effect on administration policies regarding asylum claims, the public charge rule, and the transfer of inmates during the pandemic even as these case were still being litigated in lower courts.

Even as Roberts was stealthily moving the Trump agenda forward, he showed his further political savvy in the cases the Court chose to hear in this election year. Many of the case that were near and dear to conservatives’ heart were actually incredibly weak. Some of that was due to conservative overreach based on the now solid conservative makeup of the Court. As Ian Millhiser notes, “When the Court moves rightward, conservative advocates are more likely to bring dubious cases — and conservative lawmakers are more likely to enact laws of dubious constitutionality — out of a belief that an ideologically sympathetic Court is likely to rule in their favor…As a result, the Supreme Court will tend to hear weaker claims from conservatives”.

For example, the Louisiana abortion case was exactly identical to a Texas case that the Court ruled unconstitutional in 2016. The only thing different today from 2016 was the makeup of the Court. That made it easy for Roberts to get accolades from the mainstream media when he followed precedent, joining with the liberals to strike down the Louisiana law. But Roberts left a ticking time-bomb in his opinion, openly stating “I joined the dissent in Whole Woman’s Health [the earlier Texas case] and continue to believe that the case was wrongly decided”. He suggested that additional restrictions on abortion may be legal as long as they do not pose an “undue burden” even if they provide no real benefit to the woman.

Roberts played a similar game in the case involving DACA. Again, he joined the liberals in striking down the Trump administration’s attempt to rescind DACA, basing the decision on the narrow technical issue that the Trump administration had not followed the proper procedure in its rescission and that it had relied on a faulty assumption that DACA itself was illegal. But again Roberts noted, “the dispute before the Court is not whether DHS may rescind DACA…all parties agree that it may”. And, in fact, the Trump administration has announced that it intends to now properly refile the paperwork to rescind DACA, based on Roberts “instructions” in his opinion. In both the abortion and DACA cases, Roberts sided with the liberals, saving Republicans from having to defend the elimination of these popular programs in the election, while laying the groundwork to do exactly that in the next term. As Leah Litman summarized, it’s “not that liberals won. It is that conservatives did not get everything they wanted. Not yet, anyway”.

The cases involving Trump’s financial records posed even more absurd legal arguments. They involved subpoenas from the Manhattan District Attorney looking into potential tax and bank fraud at the Trump Organization in one case and a variety of congressional subpoenas in the other. Trump was arguing that, as President, he was immune from criminal investigation and could ignore congressional subpoenas. Trump’s lawyer in one of the cases literally argued that he could shoot someone on Fifth Avenue and not be criminally investigated. Both cases also involved third-party documents so the President himself was not directly involved. As @nycsouthpaw noted even before the decisions in these cases were announced, “neither of the Trump financial records cases should have reached the Supreme Court. It’s incredibly clear that there should be no bar to Congress or criminal investigators subpoenaing third parties for non-privileged records”.

The Court unanimously rejected Trump’s arguments in both cases, with Roberts writing the opinion in both. It is perhaps a testament to just how far down the road to illiberalism we have actually gone as well as the depth of the current skepticism about the Court’s willingness to arrest that decline that what should be a normally unremarkable decision upholding our country’s foundational principles that no man is above the law and that the President is not a monarch could produce an across the fold headline in the New York Times declaring “President Is Not ‘Above The Law,’ Justices Decide”. But beyond that unanimous rejection of the Trump team’s arguments, there were differences among the judges about how these case should proceed.

Even as the Court claimed no man is above the law, their actual decision in the case involving congressional subpoenas ensures that the President is treated differently than every other American citizen. Roberts’ decision invented out of whole cloth a four part test to determine the limits of congressional subpoenas on the President. Roberts writes, “First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers…Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective…Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose…Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena”. With these new tests in place, the Court remanded the decision back own to the lower courts to determine whether the congressional subpoenas would still be valid.

Will Stancil summarized that Court’s rationale thusly, “We’ve established the important principle that the president isn’t above the law, but that doesn’t mean he’ll need to comply with the law.” Ian Millhiser also concurred, writing, “The new rule announced in Mazars [the congressional subpoenas case], however, can be boiled down into four words: ‘the president is special’”, bluntly adding, “Trump won. The House Lost. Full stop.” Moreover, Roberts’ tests limit Congress from discovering information that may actually drive legislative purpose. It would seem difficult to craft legislation around money-laundering, say, when you don’t know money-laundering is occurring.

This decision ensures that Trump’s taxes will not be public before the November election. Once again, Roberts has managed to craft a decision that, on its face, appears a victory for liberals but actually protects the President. Once again, the Court has expanded Article II executive power at the expense of the legislature’s Article I powers. Roberts writes, “Congressional demands for the President’s information present an interbranch conflict no matter where the information is held…Indeed, Congress could declare open season on the President’s information held by schools, archives, internet service providers, e-mail clients, and financial institutions”, adding “Without limits on its subpoena powers, Congress could ‘exert an imperious control’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared”. It’s hard to imagine anyone looking at what has happened over the last three years and thinking that the priority is worrying about congressional overreach. And once again, Roberts’ decision is a slap in the face of the American voter who will still not know whether Trump is financially beholden to foreign or domestic interests in November’s election as well as those who elected a Democratic House in 2018 in order to ascertain whether the President is corrupt.

The Court further enhanced executive power with its decision regarding the Consumer Financial Protection Bureau (CFPB). In that case, the conservative majority struck down congressional statutory language that stated that the head of the CFPB could not be removed by the President from his five year term without substantial cause. As the New York Times described it, the decision effectively turns the agency’s “director into something akin to a cabinet member who serves at the pleasure of a president”. At the same time, the decision again erodes decades of law since the New Deal that allowed federal agencies to act somewhat independently of presidential control.

This term also saw the conservatives continue to build the legal structures to support religious nationalism. In one particular case involving a Montana program to provide indirect aid to private schools, the Court virtually obliterated the Establishment Clause which has long been understood to separate church and state. The Montana legislature created a scheme to fund scholarships for students to attend private schools, both private and sectarian. However, the Montana Constitution has a clause that prevents public money being used to fund religious institutions and, accordingly, the State Supreme Court struck down the scheme in its entirety, including the funding for secular schools, thereby avoiding an appearance of anti-religious discrimination in funding, following the precedent against such discrimination made by another conservative ruling from the US Supreme Court in 2017. That should have ended the case then and there but the Supreme Court still decided to intervene. In a decision that Justice Sotomayor described as “perverse”, the conservatives on the court reversed the Montana court and declared that the state must now fund both private secular and sectarian schools. As Mark Joseph Stern summarizes Roberts’ opinion, “Once a state funds private education, ‘it cannot disqualify some private schools solely because they are religious’.”

What this means is that the 29 states that currently provide vouchers or tax credits for students to attend private schools must also fund private religious schools. As Stern notes, “What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs? In short, too bad: Your rights just don’t matter as much. This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law ‘respecting an establishment of religion.’ Just 18 years ago in Zelman v. Simmons-Harris, a bare majority of the Supreme Court ruled that, under the establishment clause, states were allowed to fund private schools through vouchers or tax credits, over vigorous dissents from the four liberal justices. Now the court has declared that, under the free exercise clause, most states are compelled to fund private religious schools…The only limiting principle Roberts lays out is that states ‘need not subsidize private education’ in the first place-so, in theory, states can abolish public funding of private schools entirely to avoid funding religious ones. But that’s what the Montana Supreme Court did here, yet Roberts condemned its decision as ‘discrimination against religious schools’.”

While forcing state governments to now fund religious institutions, the conservatives on the Court were also busy ensuring religious institutions were exempt from other legal requirements. In a narrow procedural decision, the conservatives along with both Breyer and Kagan, expanded the range of employers that could opt-out of the Affordable Care Act’s mandate to provide contraceptive coverage because of religious or moral objections. The decision will effected around 125,000 women and again extends unique rights based on religious or moral beliefs. In their dissent, Justices Ginsburg and Sotomayor wrote, “In accommodating claims of religious freedom, this court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree”.

In another 7–2 decision with the same justices in the majority, the Court extended the number and types of people who are covered by the ministerial exception to civil rights laws. Existing law allows “the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion”. The question in this case was whether teachers in Catholic schools who spent only a minority of their time on religious instruction and far more time on secular matters could be considered “ministers” and beyond the reach of existing civil rights laws, in this case the Age Discrimination in Employment Act and the Americans With Disabilities Act. The Court ruled that even as little as three hours a week of religious instruction would qualify one for the ministerial exception.

Again, Ginsburg and Sotomayor objected, writing, “Pause, for a moment, on the Court’s conclusion: Even if the teachers were not Catholic, and even if they were forbidden to participate in the church’s sacramental worship, they would nonetheless be ‘ministers’ of the Catholic faith simply because of their supervisory role over students in a religious school. That stretches the law and logic past their
breaking points…’thousands of Catholic teachers’ may lose employment-law protections because of today’s outcome…Other sources tally over a hundred thousand secular teachers whose rights are at risk…And that says nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets”.

Sotomayor’s concerns are not overblown and neither are concerns that religious organizations will now game this system in order to avoid civil rights laws. In 2015, the Southern Baptist Convention produced a manual encouraging religious employers to assign religious duties to low-level employees specifically to shield those institutions from civil rights law suits, particularly ones regarding discrimination against sexual orientation and gender identity. According to the manual, “When feasible, a religious organization should assign its employees duties that involve ministerial teaching, or other spiritual qualifications — duties that directly further the religious mission…Consider requiring all employees to participate in devotional or prayer time, or to even lead these on occasion”.

The upshot of these three religious cases is best summarized by Leah Litman, who writes, “The combined effect of the religion decisions is to require government support for institutions that are not required to comply with legal prohibitions on discrimination”. This is the new world the conservative Christians on the Court are building. Religious freedom will provide the new legal framework for discrimination against minorities and “others” while maintaining the white Christian patriarchy that is the core of the evangelical’s faith.

In many ways, Roberts seems moderate only when compared to Alito and Thomas who have devolved into bomb-throwing radicals. In the Montana decision, Thomas went where no Justice had gone before, openly stating that he saw no constitutional barrier to a state establishing an official religion. He wrote, the “Court’s interpretation of the Establishment Clause continues to hamper free exercise rights…Properly understood, the Establishment Clause does not prohibit States from favoring religion”. Incredibly, he was joined by Gorsuch in this view. In the same case, Alito linked the no-aid clause in the Montana Constitution to anti-Catholic bias even though the clause was readopted in the 1972 state constitutional convention. Thomas and Alito also both dissented in the rulings in both Trump financial records case, with Thomas believing Congress should only be able to subpoena the documents by using its impeachment power to get them, a view that would severely limit Congress’ oversight capabilities. Alito worried that these third party subpoenas would somehow interfere with the President’s “indispensable role that the Constitution assigns to the Presidency”.

Despite all the media reports of “liberal victories”, this term only really produced two of them and they were both provided by the obsessive adherence to textualism from Justice Gorsuch. Gorsuch wrote the opinion in a 6–3 decision that ruled LGBTQ people are covered by Title VII of the Civil Rights Act of 1964. That act forbids discrimination “because of [an employee’s] race, color, religion, sex, or national origin”. This was another very weak case based on the argument that Congress didn’t really believe it was outlawing discrimination against LGBTQ people when it included the word “sex” in the Act in 1964. Gorsuch devastated that argument, writing, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids”. Roberts also concurred in this case, again showing his ability to “call balls and strikes” only when the pitch is way outside.

Gorsuch was the swing vote in the other real liberal victory this term which involved Native American rights. From some reason, Gorsuch has always been a supporter of their rights and Native Americans largely supported his nomination accordingly. The case revolved around whether the state of Oklahoma or the federal government had the jurisdiction to prosecute a particular crime. But it also involved the Muskogee (Creek) Nation in that the crime was committed by a Native American on what the Creek Nation believed was Native American land. As such, the case would go to federal court. If the Court found the land was not part of the Creek Nation, the case would go to state court. Gorsuch’s ruling, supported by the four liberal Justices, declared that even though much of the land in Oklahoma was now privately owned by non-Native Americans, Congress had never changed the underlying treaty that allocated that land to the Creek. Therefore the case must go to federal court.

Despite outrage from conservatives such as Ted Cruz who tweeted, “Neil Gorsuch & the four liberal Justices just gave away half of Oklahoma, literally. Manhattan is next”, the decision will have little impact except for which jurisdiction can prosecute crimes perpetrated by Native Americans. Oklahoma used similar hyperbole as Cruz in its arguments before the Court, stating, “The State generally lacks the authority to tax Indians in Indian country, so turning half the State into Indian country would decimate state and local budgets”. Again, the reality is that most of this land is now held by non-Native Americans which moots that argument. But for the Creek Indians, this was a huge vindication of their long-ignored rights.

Republicans have always played the long game with the courts and, with Trump’s presidency, they have made gains that will not be erased for generations. John Roberts has also played the long game, which is why it has taken nearly twenty years to change the concept of no public moneys for private schools to today’s requirement to fund religious schools. Roberts knew, entering this term, that the Court faced a crisis of legitimacy. He heard the demands to expand the Court coming from the Democratic base. And he played this term masterfully, appearing to give liberals victories in extremely weak conservative cases while actually laying the groundwork for future conservative judgements and still protecting the Trump administration. He successfully managed to maintain the Court’s veneer of legitimacy. To repeat Leah Litman’s analysis, “A fair assessment of this term is not that liberals won. It is that conservatives did not get everything they wanted. Not yet, anyway”. Roberts is counting on Democrats, as they usually do, moving on and then bringing the hammer down in a non-election year. It is no coincidence that Republicans are apoplectic after each conservative betrayal (see Ted Cruz above), even when it is no betrayal at all. Democrats must do the same, continuing their demands to expand the Court and questioning the legitimacy of a panel where the majority of the majority were put there by Presidents who were rejected by the majority of Americans and where one of the seats was stolen. For now, this may be the only way to keep Roberts in check.

Originally published at on July 14, 2020.

Thoughtful discussions on politics and economics with some sidelights in photography and astronomy.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store