Monday, June 21, 2021

John Roberts: Hubris-in-Chief

 By Eric Segall

The prevailing wisdom both inside and outside legal academia is that Chief Justice John Roberts is first and foremost an institutionalist who cares deeply about his personal legacy and how his Court will be viewed when he finally retires. Supreme Court commentators point to his two (as of last Thursday three) votes to uphold the Affordable Care Act, as well as his decision to abide by the Court’s precedent when he invalidated two abortion laws in June Medical v. Russo last year, as the main support for the notion that the Chief sometimes subsumes his personal preferences for the greater good of Supreme Court legitimacy over time. His extremely narrow opinion for the Court in Fulton v. City of Philadelphia last week in favor of a Catholic social services agency joined in full by the Court's three liberals may well be seen in the same light. Court watchers on both the left and the right seem to share this narrative.

This oft-told tale, however, is mostly fiction.  The reality is that the defining feature of Chief Justice Roberts’ jurisprudence is not his alleged institutionalism but his non-judicial hubris.

Across the spectrum of our most contested and controversial constitutional law questions, the Chief has reached out to coerce local, state, and federal government officials to govern according to his personal wishes whether or not positive legal sources supported his preferences. He has voted to dictate important governmental policies in cases ranging from health care to affirmative action to campaign finance reform to voting rights to the separation of church and state to the separation of powers. In all of these areas, as well as many more, the Chief has used catchy sound bites and worn cliches as justifications for ignoring and/or distorting what is supposed to be the stuff of constitutional interpretation: text, history, and prior case law. 

I am working on a law review article supporting this thesis with detailed discussions of the Chief's opinions in all of the areas discussed above. For this blog post, however, I will use affirmative action as a representative example of the Chief's hubris, which is timely given the Court is currently considering whether to hear an important case involving Harvard's use of race in its admissions process. 

For many years, parents, teachers, students, and school board officials in both Seattle and Louisville tried to devise plans to increase the racial diversity of their public schools, which had been stymied by neighborhood segregation and other forms of institutional racism. Although the plans differed in some respects, both cities required minimum levels of diversity in their schools by adopting racial balancing requirements. These efforts did not affect large numbers of students but to reach the cities' goals, some students were not given their first-choice schools. 

These two attempts at desegregation were the products of local decision-making and democracy at their very best. No judge required these plans and their adoptions were made in good faith by government officials and parents to help lessen to some degree the impact on our public schools of centuries of racial discrimination.

Both a Sixth Circuit panel and the Ninth Circuit acting en banc upheld these plans. Former Judge Alex Kozinski (yes he retired in shame but his work still counts) wrote an important concurring opinion in the Ninth Circuit case in which he persuasively argued the following:        

The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability. The program does use race as a criterion, but only to ensure that the population of each public school roughly reflects the city's racial composition. Because the Seattle plan carries none of the baggage the Supreme Court has found objectionable in cases where it has applied strict scrutiny and narrow tailoring, I would consider the plan under a rational basis standard of review.
The Supreme Court decided to hear these cases when Justices Alito and Roberts joined the Court in 2005 after Justices Rehnquist and O’Connor died and retired respectively. Chief Justice Roberts wrote the plurality opinion on behalf of himself and Justices Scalia, Thomas, and Alito striking down both desegregation plans. Justice Kennedy wrote a concurring opinion, and the four liberal Justices dissented. 

There is too much to criticize in Roberts's opinion to fit into one blog post but here is a start. He repeatedly stated that both plans ran afoul of the Court's long-standing prohibition on simple racial balancing, but of course the plans were meant to serve many different and important purposes related to the benefits of American children attending public schools in an integrated as opposed to segregated environment. Roberts's view that the cities simply wanted racial balancing for racial balancing's sake just restated the issue and provided little in the way of real analysis. The briefs and dissenting opinions were full of reasons why the desire to have kids learning in a diverse educational environment constituted a compelling state interest.

The most egregious and controversial part of Roberts’s opinion invalidating these diversity measures came at the very end where he wrote this [in]famous sound bite: “The way to stop discrimination based on race is to stop discriminating based on race.” Kennedy responded in his concurrence that his trope is “not sufficient to decide these cases.” True, and it also a classic example of the Chief's hubris.

As numerous academics have argued, the Fourteenth Amendment’s original meaning does not support the invalidation of affirmative action programs and, of course, the text of the Amendment does not even mention race. As the Court announced in one of its earliest decisions interpreting the Amendment, the newly freed formerly enslaved persons "needed the protection which a wise government extends to those who are unable to protect themselves....It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons...."

Chief Justice Roberts’s summary dismissal of the efforts by local government officials to bring the races together relied on neither text nor history. He did rely, egregiously, on the plaintiffs’ brief in Brown v. Board of Education, for the proposition that “the Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” But this out-of-context snippet, not even from the case, ignored the world in which Brown was decided. As Justice Stevens remarked in dissent, the Chief said that:

'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' This sentence reminds me of Anatole France’s observation: ‘[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.

There is not a syllable in Brown discussing the possibility of local school districts trying on their own to address racial segregation in public schools caused by our sordid past. The efforts by Louisville and Seattle to do so by utilizing limited racial balancing, whether good or bad, right or wrong, simply did not violate any prior positive law materials such as text, history, tradition, or even precedent.

Chief Justice Roberts’s cliched sound bite that the way to end racial discrimination is to stop discriminating on the basis of race hides numerous difficult and contestable value judgments underlying his distaste for voluntary efforts by state governments to alleviate the burdens on our country caused by centuries of slavery, segregation, and numerous other forms of racial discrimination. How to address those problems raises difficult questions for our country’s elected officials. But the idea that the Justices should interfere and overrule those decisions when the beneficiaries are children of all races, when the text and history of the Constitution are silent, and when the vestiges of racial discrimination still haunt our country every day, smacks much more of judicial hubris than either legitimate constitutional interpretation or devotion to the Court's reputation over time.

Chief Justice Roberts has penned numerous other opinions that constitutionalize his own values, as I will discuss in my article. For example, he tortured text, precedent, and history in Shelby County v. Holder to gut the Voting Rights Act; his bizarre and narrow view of corruption has led to a series of egregious campaign finance decisions; his desire to limit Congress' spending power led him to make demonstrably false statements of fact about the Affordable Care Act in NFIB v. Sebelius, and his devotion to the unitary executive has resulted in overly fomalistic conceptions of the separation of powers that threaten vast legitimate areas of agency discretion.

Occasionally, Roberts chooses to act with restraint instead of aggression, although such examples are much rarer than many people think. Court followers often suggest his restrained opinions, such as his decision upholding the individual mandate in the Affordable Care Act as a tax, are motivated by his institutionalism, and they may be at least partly right. But such restraint is only warranted when there is a good faith argument based on text, history, or precedent to support it. More often than not in these cases, as my article will show, Roberts's restraint is more the product of political and personal calculations than persuasive arguments derived from facts and law. In other words, they are the product of Roberts's hubris that he knows better what our country needs, all things considered, than more accountable governmental officials and even other Justices, and that confidence is what most drives the Chief Justice of the United States Supreme Court.