As the Supreme Court begins its new term this first Monday in October, it’s worth noting that an important anniversary went largely unnoticed on September 29. It was the 20th anniversary of John Roberts being sworn in as chief justice of the United States and the beginning of the Roberts Court. There have been only 17 chief justices—some very memorable, like John Marshall, and others far less beneficial, like Roger Taney, author of the Dred Scott decision, which held that Black people were not citizens, making March 6, 1857, the darkest day in the Court’s history.
Roberts’s appointment came during George W. Bush’s annus horribilis—a year after the president’s 2004 reelection, when his administration mishandled Hurricane Katrina, watched its invasion of Iraq unravel, and made an ill-fated run at partially privatizing Social Security. Roberts was initially tapped to replace Justice Sandra Day O’Connor, who had announced her pending retirement on July 1, 2005. However, when Chief Justice William Rehnquist died in September 2005, Bush only waited two days to tap Roberts for the Chief’s seat and his White House Counsel, Harriet Miers, for the O’Connor vacancy. In case you’ve forgotten or are too young to remember, Miers withdrew after conservatives decried her lack of experience and worried about her right-wing bona fides. Bush got the message, dispensed with appointing another woman (or cipher) to the Court, and named a right-wing favorite, Samuel Alito of the Second Circuit, to fill the associate justice’s seat.
Twenty years into the Roberts Court, the Court’s public approval is close to its lowest since such measures began.
During Roberts’s tenure, the law has shifted significantly toward fulfilling many of the conservative legal movement’s main priorities, such as the doctrine of the “unitary executive,” which it has nearly fully embraced. This weakens the separation of powers that has served as a check and balance against a “man on horseback” for over 230 years. The largest number of Americans ever surveyed says the Court is now too conservative. Iconic liberal Justices Oliver Wendell Holmes, Louis Brandeis, Hugo Black, William O. Douglas, Earl Warren, and William Brennan must all be turning over in their graves. Justices who favored a humble, modest court that deferred to legislatures wherever possible, such as Felix Frankfurter, must also be spinning.
Now, the Roberts court may be tilting even further to the right. The doctrine of stare decisis has always been the keystone of our common law, which we inherited from England. Stare decisis means that courts must stand by what they decide. The doctrine ensures consistency and predictability in the law.
The late Justice Antonin Scalia recognized stare decisis as a guiding principle. Famously describing himself as a “faint-hearted originalist” who would abandon the historical meaning of the Constitution when following it was intolerable, he proclaimed that “stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.”
Stare decisis is sensible because, among other reasons, it protects those who have organized their affairs based on a court’s existing rulings. Why make a will or cut a business agreement unless you are confident the courts will enforce its provisions? Why marry someone of the same sex if you believe the Court’s decision that such a marriage is constitutionally guaranteed is vulnerable to being scuttled just a few years later?
Justice Clarence Thomas questions the strong foundation of stare decisis. Days before the Court’s term begins, Thomas told a Catholic University audience that he feels no duty to follow “totally stupid precedent if I find it doesn’t make any sense.” How does he determine what is “totally stupid,” the text, the original understanding, or just his gut feeling?
Thomas continued his harangue, “I think we should demand that, no matter what the case is, that it has more than just a simple theoretical basis,” Thomas said. If it’s “totally stupid, and that’s what they’ve decided, you don’t go along with it just because it’s decided.”
He added: “I don’t think that … any of these cases that have been decided are the gospel,” Thomas said during the rare public appearance. “And I do give perspective to the precedent. But … the precedent should be respectful of our legal tradition, and our country and our laws, and be based on something, not just something somebody dreamt up, and others went along with.”
Settled legal precedent in the U.S. is not “gospel” and, in some instances, may have been “something somebody dreamt up and others went along with,” but stare decisis is a venerable principle of the common law, and judges since Magna Carta in 1215 have venerated the doctrine. It doesn’t mean every precedent stands forever. Still, when the Court overturns one, as it did in 1954’s Brown v. Board of Education, overturning racial segregation in public schools, it does so sparingly. It begins to signal its objections in prior cases. Brown was preceded by other cases overturning racial discrimination, such as Texas’s all-white Democratic primary.
Thomas’s remarks are especially troubling now that the Court is considering a request to overturn the 2015 Obergefell Supreme Court decision that guaranteed marriage rights for same-sex couples, along with issues like birthright citizenship, the independence of regulatory agencies—which have been part of our government since the late 19th century—presidentially imposed tariffs, transgender rights, voting rights, campaign finance law, religious rights, and capital punishment.
Given Roberts’s record and Thomas’s remarks, there’s reason to fear stare decisis is disappearing. It didn’t stop the Court from overturning Roe v. Wade and decades of case law on regulation. Just last week, the Court ignored stare decisis, almost overruling the 1935 case Humphrey’s Executor by allowing Trump to remove, at least temporarily, a commissioner on the Federal Trade Commission—the same agency involved in that New Deal-era decision.
Humphrey’s Executor involved President Herbert Hoover’s nomination of Humphrey as an FTC commissioner, which the Senate confirmed. In 1933, President Franklin D. Roosevelt requested Humphrey’s resignation. When Humphrey refused, Roosevelt fired him despite the FTC Act stating that a president could only remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office,” none of which applied to Humphrey. The unanimous Court ruled that the FTC Act was constitutional and that Humphrey’s dismissal on policy grounds was unjustified. The Court reasoned that the Constitution has never granted the “illimitable power of removal” to the president. Unless, as this Roberts Court interprets it, the Constitution gives the president that power when their name is Trump.
This week, the Court allowed Federal Reserve Governor Lisa Cook to keep her seat temporarily while Trump attempts to fire her. It will review the utterly concocted case against her, which is notable since just weeks earlier, the Court emphasized that members of the central bank deserve greater protection from removal than, for example, members of the National Labor Relations Board. No wonder virtually every living Federal Reserve chair and Treasury Secretary has begged the Court in an amicus brief not to permit the president to fire a Fed governor over an unproven charge of mortgage fraud. (Speaking of amicus briefs, it’s shocking and little noticed that in her new book, Listening to the Law, Justice Amy Coney Barrett states she generally does not read amicus briefs because they focus on policy issues rather than purely on the law. More on that in a minute.)
In 2013, the Roberts Court didn’t strike down the Voting Rights Act, but just a few years after Congress nearly unanimously renewed some of the statute’s temporary provisions, and President George W. Bush signed it in 2006, in Shelby County v. Holder, it neutered the law’s preclearance provisions. John Roberts wrote the opinion.
These provisions require states with a history of voting rights abuses to obtain federal permission from the Justice Department or the D.C. Circuit Court of Appeals before changing their voting practices, such as redrawing district lines or relocating polling stations. Roberts wrote the decision invalidating decades-old precedent; he allowed the Section 5 preclearance tool to survive (I bet at the insistence of the Court’s moderate swing vote, Justice Anthony Kennedy) but struck down the Section 4 standards that governed where Section 5 could be used. Congress and the president had frequently updated those standards over the decades to keep pace with changing conditions so states could get out of the penalty box. No matter. The Roberts Court substituted its judgment for that of multiple Congresses and presidents.
Now the Court seems ready to go after Section 2 of the Voting Rights Act, a permanent nationwide provision of the 1965 statute that bars electoral practices with a discriminatory “effect.” The Rehnquist Court upheld the discriminatory effect standard that Congress wrote into Section 2 in 1982, and that President Ronald Reagan signed. The Roberts Court seems eager to strike it down 43 years later.
Sustaining the Voting Rights Act is the acknowledgement that if states violate the Constitution when they draw congressional district lines to dilute minority (and especially Black) votes, then it ought to follow that Congress can enforce the Constitution by requiring states to draw districts that don’t so discriminate—even if that requires states to consider race when doing so. Otherwise, this critical constitutional principle would be a dead letter. But the justices may further trash the statute Roberts gutted in Shelby and decide otherwise.
In 2005, when Roberts, then a jurist on the D.C. Circuit, faced confirmation hearings to become chief justice, he likened his judicial role to a baseball umpire. “It’s my job to call balls and strikes,” he famously said, an aw-shucks response meant to prove that he would be a humble chief justice. Since he’d spent most of his career as a litigator instead of an ivory tower jurist, this seemed plausible.
Roberts won plaudits as an institutionalist when he was the deciding vote upholding the Affordable Care Act in 2012. Still, he has often shown himself as a hard-right justice in institutional drag. He voted to uphold a Mississippi law banning abortion, although he refrained from the coup de grâce, and did not join Alito’s gleeful opinion eviscerating of Roe v. Wade, a super precedent for almost half a century. His Court, with his complete agreement, dismantled the “Chevron deference” in regulatory cases, a 1984 doctrine established and supported by Republican-appointed justices to emphasize that regulations created under President Reagan couldn’t be easily overturned. He sided with his Court’s conservative wing to consider numerous cases on the shadow docket and has voted to vacate injunctions to allow illegal conduct to continue. As cases wind their way to a conclusion, he has also voted to decide cases on an interim basis—even when he didn’t need to—and, under the guise of issuing temporary orders, has often resolved weighty legal issues at earlier stages of litigation. So, regardless of your opinion of Roberts, don’t naively label him as an institutionalist.
Most importantly, Roberts has blessed the expansion of presidential powers to the point where even if the chief executive ordered Seal Team Six to murder his opponents, in the words of one appellate judge, it would not expose the president to any charges, even after leaving office. Hence, Trump’s myriad felony convictions and federal prosecutions became one big nothingburger.
With Thomas ignoring the precedents and Barrett saying she doesn’t read most amicus briefs because they address policy issues rather than the law, we have at least two justices, influenced by a conservative ideology, who will focus on legal principles of their own choosing. I doubt they’re alone.
If this is so in this era of artificial intelligence, why do we need judges? I always thought that law was policy by another name or a close cousin. Freedom of the press and freedom of religion are fundamental rights. They are also policies. If a justice wants to ignore the gravity of amicus briefs, that’s just weird. So, we have a supermajority that includes precedent and policy ignorers. Now that the Court has abolished constitutional protections for abortion, eviscerated a significant provision of the Voting Rights Act and has its eyes set on another, expanded executive power to kingly proportions, and greenlit big money in politics, it’s hard to imagine what they won’t do to precedents Thomas has hinted strongly that he wants to overrule such as New York Times v. Sullivan, which affords the press protection from libel actions filed by public figures. If all they are doing is calling balls and strikes (and I mightily dispute this), we might as well abolish the judiciary and replace it with an AI ball-strike challenge, which might be preferable to what we have under Chief Justice Roberts.
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