Monday, April 27, 2020

Oyez Oyez: Supreme Umpires and the Roberts Court

By Eric Segall

“Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

These famous words, spoken by then judge John Roberts at his confirmation hearing to become a Supreme Court Justice, came to my mind this weekend as I was lamenting the absence of the siren song of Spring: “Play Ball!” Supreme Court watchers, like baseball fans, know that once temperatures rise, and the grey skies of winter fade, the action really begins. But alas not this year, and it is quite uncertain if or when baseball umpires will return. 

But no fear, the Supreme Umpires are hard at work (from their homes if not their marble palace), and with cases on abortion, guns, religion, and the separation of powers teed up (to mix metaphors), we can expect a lot of excitement between now and the end of the term. Ruminating about all of this made me reflect on how Chief Justice Roberts has done as an umpire who doesn’t “make the rules,” but only applies them in “a limited role.” So I thought a small representative retrospective was in order.

1) 2005-2006 Term: Parents Involved v. Seattle School District: In his very first season as our nation's Chief Umpire, John Roberts wrote a plurality opinion virtually ignoring almost 200 years of slavery, segregation, and racial discrimination by prohibiting Seattle and Louisville (Lousiville!) from employing mild racial tools to desegregate their elementary and secondary schools. Distorting the holding of Brown v. Board of Education, Roberts issued his first major sound bite in an important Supreme Court case: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Meanwhile, the most senior Justice on the Court at the time, John Paul Stevens (whose name admittedly evokes umpires and, well okay, pirates), said in dissent that: "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision." The rule-following-but-not-making Umpire-in-Chief was off to quite a start.

2) 2007-2008: District of Columbia v. Heller: From 1791-2008, the Supreme Court, perhaps relying upon the constitutional text,  "A well-regulated militia being necessary for the security of a free state," had never, not once, found that the Second Amendment protected an individual right to own guns. But the curve-ball-calling Roberts Court would not be deterred. Overturning a D.C. law that had been on the books for over 30 years, the conservative SCOTUS umpires lengthened their own strike zone to give state and federal judges new authority to review gun control legislation. Two years later, in McDonald v. City of Chicago, the zone would be extended to all state and local laws as well. Less than four years into his Supreme Court career, Roberts was showing how much he intended to play "only a limited role."

3) 2009-2010: Citizens United v. FEC: Perhaps you've heard of this case. It reversed an important twenty-year old decision that held corporate speech relating to elections could be limited by state and federal governments to prevent corruption or the appearance of corruption--a precedent that included among its joiners that left-wing communist, and the person Roberts replaced as Umpire-in-Chief, William Rehnquist. But no more. In another 5-4 decision (all the cases on this list were decided by 5-4 votes), the conservative Justices said that corporate speech and individual speech had to be essentially treated the same by our elected leaders when they try (now ineffectively) to limit the corrosive effects of corporate money on our elections. In the first paragraph of his concurring opinion, Chief Justice Roberts must have closed his eyes when he called out the final batter of the game because in a decision that forever changed American politics, he had the nerve to say the following: "I write separately to address the important principles of judicial restraint and stare decisis implicated in this case." One can't help but wonder if this umpire was on the payroll of the winning team.

4) 2011-2012: NFIB v. Sebelius: In perhaps no other opinion in his career did John Roberts both enlarge and shrink the strike zone quite as aggressively as he did in his opinion upholding parts of and invalidating parts of the Affordable Care Act. Voting that Congress lacked the power to regulate buying decisions in a trillion-dollar industry that affects the commerce of every state under a constitutional provision that gives Congress the power to regulate "commerce among the states," Roberts also held that Congress could not offer the states a choice to accept or not accept federal money to help their poorest citizens receive medical care because giving them that choice somehow violated a constitutional provision that gives Congress the power to spend for the general welfare. 

Perhaps because he was trying to play only a "limited role," Roberts decided to uphold the main part of the law by calling the requirement that people purchase health insurance a tax--something the President of the United States and members of Congress had vehemently denied when they lobbied for the law's passage. The long game here was that Roberts knew that the decision would in the end hurt federal power as the commerce clause authority is the one one normally used by Congress to, you know, regulate commerce. If Congress tries to regulate commerce by calling federal legislation a tax, the game will usually be over before the players even take the field.

5) 2012-2013: Shelby County v. Holder: Some people may not know that before John Roberts became a legal umpire, he actually played the game of law. And in 1981, as a young pitcher, Roberts took aim at one of the most important laws in American history. Playing for Ronald Reagan's Department of Justice, Roberts threw this spitball at his coaches: “Violations of Section 2 [of the Voting Rights Act] 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.” Never mind that the whole purpose of the Voting Rights Act was to stop states from continuing their almost 100 year history of deriving African Americans of their constitutionally protected right to vote.

In 2006, Congress reauthorized the Voting Rights Act by a unanimous vote in the Senate (you read that right), an overwhelming vote in the House, and the approval of that lefty George W. Bush who said the following when he signed the law: "Congress has reaffirmed its belief that all men are created equal...The right of ordinary men and women to determine their own political future lies at the heart of the American experiment...."

Despite having been upheld by the Supreme Court on numerous occasions, a key section of the Voting Rights Act requiring some states and counties with long histories of using discriminatory voting tools to stop African Americans from voting was struck down by the Roberts Court umpires. In an opinion by the Chief, the conservatives announced a new rule of constitutional law that had been explicitly rejected by the Justices more than a quarter-of-a-century earlier. This new rule, not found anywhere in the text of the Constitution, and at odds with the history of the 15th Amendment, which prohibits states from denying people the right to vote on the basis of race, prevents Congress from treating some states differently than others unless it has a strong reason to do so. This brand new rule, labeled by the Chief  "equal state sovereignty," was not satisfied in Shelby County despite Congress holding 21 days of hearings and accumulating 15,000 pages of testimony showing that the states covered by the ban were still utilizing election tools designed to stop African-Americans from voting. As Scott Lemieux observed

"Even setting aside his failure to base it on the text of the Constitution, Roberts's argument-that Congress once had the relevant power but no longer does because the statute was too effective at protecting the rights it was intended to-defies logic."

This extra-inning called strike crippled the Voting Rights Act and led to the adoption by numerous red states of new laws closing polling places, purging voter rolls, and requiring voter photo identifications as a pre-requisite for casting the ballot. This decision fixed the outcomes unfairly in many voting contests in subsequent seasons. But remember, judges, like umpires, "don't make the rules."

These are just five instances where the Roberts Court changed the landscape of the American political system by overruling established precedents, making up new rules of constitutional law, and reaching out to impose its conservative vision on the American people.  Other notorious examples include the conservative Justices using the first amendment to alter the non-expressive relationships between states and their own workers hurting public sector unions, over-reading and misinterpreting a 1925 federal statute in a series of decisions to require American consumers and employees to arbitrate legal claims depriving them of their day in court, and making it much harder for injured plaintiffs to file class actions to redress illegal behavior by America's largest companies. These cases all reflect the business-oriented, anti-minority, anti-consumer, anti-plaintiff, anti-union agenda of the Chief Justice and his conservative cronies. Imagine a baseball game being called by umpires paid by the opposing team and you get the idea. With guns, religion, abortion, and the separation of powers coming to bat over the next few two months, I wish we could cancel the SCOTUS season altogether.