The PJ Tatler

Did John Roberts Hollow Out the Supreme Court's Self-Image?

Supreme Court Chief Justice John Roberts is on vacation in Malta now, where he may reflect on the great castle left there by the order of knights who share the island’s name. The castle was built as a bulwark to protect pilgrims from harm as they made their way toward the Holy Land, and has stood for nine centuries. Today it is a beautiful, but mostly empty shell that protects no pilgrims and holds off no bandits or hordes. It hosts concerts. The knights, once warriors entrusted to defend the Holy Land, now act as mere intermediaries. Their castle is a relic of a bygone era and of a spent force.

The U.S. Supreme Court’s image as being a body insulated from outside political forces may likewise be a relic which Roberts himself has left behind. Since Marbury vs. Madison the Supreme Court has burnished an image that it is above and immune from ordinary political pressure. That is not to say that the court has always gotten its decisions correct: Dred Scott and Roe v Wade are just two of its more controversial decisions, and the latter triggered an unending social war over the point at which life begins. Dred Scott blazed a path toward actual civil war. But the Supreme Court has nevertheless presented itself as the capstone of an apolitical judiciary, and the least political of the three branches of the U.S. government. Gore v Bush and later Citizens United both became bloody shirts for the left to wave and cry foul because they did not get their way, and when that happens, they never forget. It was Citizens United that President Obama criticized during a State of the Union address, while Roberts and most of the other justices were sitting in the president’s audience. The president also led a campaign of harsh public criticism leading up to the Supreme Court handing down its decision. Roberts is said to have taken both cases into account when he switched his ObamaCare vote.

The chief justice is widely believed to have upheld ObamaCare not based on the law or the Constitution, but in order to re-establish the court’s non-partisan, above-the-fray image. Additionally, if the widely discussed CBS insider story is correct, someone on the court is making a disturbing accusation: that Roberts bowed to media pressure and commentary and switched his vote from overturn to sustain. He read newspaper accounts and watched TV news accounts and switched his vote to blunt the storm of criticism that he saw coming his way. One story today even suggests that Roberts played stand-in for Shakespeare’s indecisive Hamlet, writing both the majority opinion and the dissent.

That the criticism Roberts saw was coming entirely from political operators on the left, who had a vested political interest in protecting President Obama, was apparently entirely lost on him. It suggests that he is a lousy, weak-spined politician himself.

Roberts switched his vote, so we’re led to believe in a positive framing, because he wanted to act as custodian of the court’s honor. He wanted to blunt charges that his court is partisan, and he wanted perhaps to burnish his own image as a justice who just calls balls and strikes. He wanted to tone down the politics surrounding the court and its decisions.

If that was his intent, and if media pressure truly caused Roberts to switch his vote, then he failed badly in building a moat to keep politics away from his court. If political pressure worked on him this time, there is every reason to believe that it will work on him again, and more political pressure will work even better. Future cases that reach the Supreme Court will come with something that up to now America has been spared: Full media campaigns to influence the nation’s highest court. We will see political ads on TV and the internet meant entirely to influence one or two members of the Supreme Court now, and probably other justices in the future. We will see media stories written entirely for an audience of one or two. Justices Roberts and Kennedy, at least, will be targets of these media campaigns. They will be targets of the ads and they will be targets of threats and intimidation to get them to vote with the court’s solid bloc on the left. They will be targets of scurrilous accusations as if they were ordinary politicians, and why wouldn’t they be? If Roberts switched his vote because of the pressure and criticism, then he has become an ordinary politician. He can be cowed and presumably he can be bought, too. He has shown himself to be the wishy-washy politician whom everyone tries to buttonhole into voting their way, but whom no one respects. Roberts has opened himself up for political campaigns and fights he is ill-equipped to handle well, if he really did bow to media and political pressure.

The body called the Supreme Court and the Constitution it is supposed to protect will go on, but like the castle on Malta, the court’s self-image of transcending apolitical integrity may end up as nothing more than a relic. If Roberts bowed to media and political pressure, then a new reality will soon set in: That the U.S. Supreme Court is nothing but an unelected super-legislature, ruling not on what they are supposed to rule on, but on what they feel like ruling on based on which ads and pundits can do the best job of getting under their skin or scaring them. It is as subject to political pressure and persuasion as another political body. Take a justice out to dinner, promise them a bauble, threaten them in one way or another in private or in public or run some negative ads to beat them up or happy ads to stroke their ego, and watch them do your preferred violence to the Constitution. Supreme Court justices will have become senators whom the American people cannot vote out.