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There is no bigger con man in the United States than Supreme Court Chief Justice John Roberts. Not even President Donald J. Trump.<\/p>\n
The con began in September 2005, during\u00a0Roberts\u2019s confirmation hearing<\/a>\u00a0before the Senate Judiciary Committee. Articulate, handsome, and energetic at fifty years old, Roberts seemed to have been culled \u201cstraight from central casting,\u201d as Republican Senator Jeff Sessions of Alabama actually\u00a0remarked<\/a>\u00a0on the first day of the hearings. Roberts was also convincing\u2014he famously promised that if confirmed, he would serve in the fashion of a\u00a0baseball umpire<\/a>, calling only \u201cballs and strikes, and not to pitch or bat.\u201d Seventy-eight Senators, including twenty-two Democrats,\u00a0fell<\/a>\u00a0for the ploy and voted to give him the lifetime assignment.<\/p>\n The biggest yarn Roberts told during his hearing concerned his views on the\u00a0Voting Rights Act of 1965<\/a>\u00a0(VRA), a cornerstone of American democracy, which the Supreme Court gutted this past April in a redistricting case from the state of Louisiana (Louisiana v. Callais<\/a><\/em>).<\/p>\n As is his prerogative as Chief Justice, Roberts assigned the task of drafting the\u00a0Callais\u00a0majority opinion to fellow conservative Justice Samuel Alito, who responded with a 6 to 3 ruling that held that, henceforth, Section 2 of the landmark legislation would require VRA plaintiffs to meet the nearly impossible burden of proving that redistricting maps challenged as \u201cracial gerrymanders\u201d were created with discriminatory intent rather than for permissible political purposes. The opinion allowed Louisiana to eliminate one majority Black Congressional district. It also effectively negated legislation passed in 1982 that had amended Section 2 to permit the Justice Department and private citizens to challenge election laws that have the effect of diluting minority voting power without proving intent.<\/p>\n Flash back to 2005 and it is apparent that, at best, Roberts misled the judiciary committee. In response to a question from Massachusetts Democratic Senator Ted Kennedy about the VRA\u2019s constitutionality,\u00a0Roberts replied<\/a>, \u201c[T]he existing Voting Rights Act\u2014the constitutionality has been upheld. And I don\u2019t have any issue with that.\u201d<\/p>\n In fact, Roberts had plenty of issues with the VRA. As a young lawyer serving as a special assistant to Attorney General William French Smith in the Reagan Administration, Roberts authored upward of twenty-five\u00a0memos<\/a>\u00a0opposing the 1982 legislation. In them, Roberts urged the administration to defeat any proposed changes to the VRA and to keep the \u201cintent test\u201d established by a\u00a01980 Supreme Court decision<\/a>\u00a0(City of Mobile v. Bolden<\/em>) that required VRA plaintiffs to prove officials explicitly intended to discriminate against minority voters. Adopting the effects test over the intent test,\u00a0Roberts argued<\/a>, would create \u201ca quota system [akin to affirmative action] for electoral politics by creating a right to proportional racial representation on elected governmental bodies.\u201d<\/p>\n In another exchange at his confirmation hearing, this time with Wisconsin Democratic Senator\u00a0Russ Feingold<\/a>, Roberts sought to explain away his memos as just part of the job he had been assigned at the time rather than a reflection of his personal views,\u00a0saying<\/a>, \u201cI was a twenty-six-year-old staff lawyer. It was my first job as a lawyer after my clerkships [with Second Circuit Judge Fred Friendly and Supreme Court Chief Justice William Rehnquist]. I was not shaping administration policy. The administration policy was shaped by the Attorney General . . . . It was the policy of President Reagan. It was to extend the Voting Rights Act without change.\u201d<\/p>\n Despite young Roberts\u2019s warnings, the 1982 amendments were passed by Congress with overwhelming bipartisan support by a vote of\u00a0389 to 24 in the House and 85 to 8 in the Senate<\/a>. President Reagan quickly reversed course and signed the amendments into law on\u00a0June 29, 1982<\/a>. In\u00a02006<\/a>, Congress extended the VRA for another twenty-five years with even greater bipartisan support, by a vote of 390 to 33 in the House and 98 to 0 in the Senate.<\/p>\n Once installed as the nation\u2019s seventeenth Chief Justice, it didn\u2019t take Roberts long to show his true colors, declaring in a 2007 majority opinion on busing in public schools (Parents Involved in Community Schools v. Seattle School District Number\u00a0One<\/a><\/em>) that, \u201cThe way to stop discrimination on the basis of race is to stop discriminating on the basis of race.\u201d<\/p>\n Two years later, in an otherwise obscure case (Northwest Austin Municipal Utility District Number One v. Holder<\/em><\/a>) involving the elected board of a municipal water district in Texas, he turned his attention to Sections 4 and 5 of the VRA, which required state and local jurisdictions, mostly in the South, with histories of egregious voter discrimination to obtain advance federal approval\u2014known as \u201cpreclearance\u201d\u2014before making changes to their election procedures.\u00a0Although his opinion left the sections intact, Roberts warned that unless Congress updated the formula to determine which jurisdictions should be subject to the preclearance process, the Supreme Court might stop the process altogether.\u00a0<\/p>\n In 2013, he made good on that threat. Writing for a 5 to 4 majority in\u00a0Shelby County v. Holder<\/a><\/em>, he invalidated the preclearance formula and effectively put an end to the process, reasoning that racism in American elections was a thing of the past and there was no longer any justification for singling out Southern states for remedial measures.\u00a0Shelby<\/em>\u00a0led swiftly to an\u00a0upsurge<\/a>\u00a0in restrictive voter ID laws, voting-roll purges, and limitations on mail-in balloting in Republican-led states across the country, especially in the South.<\/p>\n Although Roberts also declared in\u00a0Shelby\u00a0that Section 2 of the VRA \u201cis permanent, [and] applies nationwide,\u201d he returned to the attack with his 2019 majority opinion in\u00a0Rucho v. Common Cause<\/a><\/em>, holding that \u201cpolitical gerrymandering\u201d claims cannot be brought in federal courts because they\u00a0present<\/a>\u00a0nonjusticiable \u201cpolitical questions.\u201d Political gerrymandering has a long history in the United States, Roberts noted, dating back to the\u00a0salamander-shaped<\/a>\u00a0voting districts created by Massachusetts Governor Elbridge Gerry in 1812 to give an advantage to his Democratic-Republican Party. \u201cThe Constitution,\u201d Roberts argued in\u00a0Rucho, \u201csupplies no objective measure for assessing whether a districting map treats a political party fairly\u201d and thus provides no basis for proportional political representation. Lacking objective standards to work with, he concluded, the federal courts had no business entering the redistricting wars.<\/p>\n Rucho<\/em>, in turn, set the stage for\u00a0Callais<\/em>\u00a0in 2026, which put an end to claims of racial gerrymandering, the last bastion of relief from discrimination available under the VRA.\u00a0Callais<\/em>\u00a0gave red states permission to redesign their electoral maps to eliminate \u201cmajority-minority<\/a>\u00a0districts\u201d (where a minority group comprises a majority of the population) that had been created to boost the electoral power of Black and Latine voters, who tend to lean Democratic.\u00a0Election law<\/a>\u00a0predict that as a result of\u00a0Callais<\/em>, as many as\u00a0nineteen\u00a0seats in Tennessee, Alabama, Mississippi, South Carolina, Florida, and Louisiana could be eliminated, starting with the November midterms, potentially returning the bulk of the former states of the Confederacy to virtual one-party rule.<\/p>\n As\u00a0The Nation<\/em>\u2019s justice correspondent Elie Mystal put it in a mournful post-Callais<\/em>\u00a0column<\/a>, \u201cThe ruling effectively ends the VRA, and with it the all too brief era of multiracial democracy in America.\u201d And as Ari Berman added in a\u00a0piece for Mother Jones<\/em><\/a>,\u00a0Callais\u00a0may have been written by Alito, but it \u201crepresents the life\u2019s work of Chief Justice\u00a0\u00a0John Roberts<\/a>\u00a0. . . [who] has been trying to\u00a0kill the Voting Rights Act<\/a>\u00a0for more than forty years.\u201d<\/p>\n The severe negative reaction to\u00a0Callais<\/em>\u00a0forced Roberts to do damage control. Addressing a\u00a0judicial conference<\/a>\u00a0in Hershey, Pennsylvania, in early May, he said: \u201cI think at a very basic level, people think we\u2019re making policy decisions, [that] we\u2019re saying we think this is what things should be as opposed to this is what the law provides . . . . I think they view us as truly political actors, which I don\u2019t think is an accurate understanding of what we do. I would say that\u2019s the main difficulty . . . . We\u2019re not simply part of the political process.\u201d<\/p>\n The problem for Roberts is that his shtick just isn\u2019t working anymore. Any lingering pretense of impartiality ended with his stunning majority opinion in 2024\u2019s\u00a0Trump v. United States<\/a><\/em>, which offered the President near-complete immunity from criminal prosecution for his official acts.\u00a0In addition to shielding Trump from legal accountability, the immunity ruling embraced the Reagan-era \u201cunitary executive theory,\u201d which\u00a0posits<\/a>\u00a0that all executive power is concentrated in the person of the President, as a settled principle of Constitutional law.<\/p>\n The unitary theory was on full display again in late-June opinions this term on immigration and independent agencies. In\u00a0Trump v. Slaughter<\/a><\/em>, another 6 to 3 majority opinion written by Roberts involving the firing of a Federal Trade Commissioner, the Court overturned a\u00a0federal law<\/a>\u00a0that bars the President from firing members of the independent agencies created by Congress without just cause. In the process, Roberts overruled a precedent decision that had stood since 1935 (Humphrey\u2019s Executor v. United States<\/a><\/em>), which had upheld the contested statute.<\/p>\n In rulings on the immigration cases, both written by Alito and resolved 6 to 3 along party lines, the Court upheld the administration\u2019s termination of temporary protected status (TPS) for an estimated\u00a0350,000 Haitian and 6,000 Syrian nationals<\/a>\u00a0who were allowed to come to the United States to avoid persecution (Mullin v. Doe<\/a><\/em>), and authorized the administration to revive Trump\u2019s first-term policy denying asylum seekers the right to enter the country before reaching the U.S.-Mexico border (Mullin v. Al Otro Lado<\/a><\/em>).<\/p>\n The immigration decisions sparked uncommonly vitriolic dissents from the Court\u2019s three liberal Justices, exposing deepening fissures on the bench. In the asylum case, Justice Sonia Sotomayor blasted the majority,\u00a0writing<\/a>, \u201cThe consequences of today\u2019s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not.\u201d In the TPS case, Justice Elena Kagan all but accused the majority of enabling Trump\u2019s racism, citing the President\u2019s public statements accusing Haitian refugees of \u201ceating\u201d cats and dogs, \u201cpoisoning the blood,\u201d and saying they come from a \u201cshithole country\u201d and \u201cprobably have AIDS.\u201d<\/p>\n The Court\u2019s racial bias was also evident in its \u201cshadow docket,\u201d\u00a0the term\u00a0<\/a>given to emergency appeals that come before the Court outside of its standard \u201cmerits\u201d docket and are typically resolved rapidly without full briefing and on an interim basis while litigation proceeds in lower courts. In one particularly egregious ruling (Noem v. Perdomo<\/a><\/em>), the Court permitted immigration agents to detain suspected undocumented immigrants on the basis of race, ethnicity, language, location, and occupation,\u00a0green-lighting<\/a>\u00a0unbridled\u00a0racial profiling<\/a>.<\/p>\n The shadow docket also included an\u00a0emergency order<\/a>\u00a0permitting Alabama to reinstate a Congressional map that eliminates a Black-majority district that the Court had\u00a0invalidated under the VRA just three years ago<\/a>.<\/p>\n Even in the handful of major decisions the Trump Administration lost this term, the cases were narrowly framed. In\u00a0Learning Resources, Inc. v. Trump<\/a><\/em>, with Roberts writing for a 6 to 3 majority, the Court invalidated Trump\u2019s worldwide \u201cliberation day\u201d tariffs under the International Emergency Economic Powers Act, but left the door open for more targeted duties under different statutes. Similarly, in\u00a0Trump v. Cook<\/a><\/em>, with Roberts writing for a 5 to 4 majority, the Court temporarily barred Trump from firing a member of the Federal Reserve Board of Governors while her lower-court challenges continue.<\/p>\n Continuing the trend, with Justice Amy Coney Barrett writing for a 5 to 4 majority in\u00a0Watson v. Republican National Committee<\/a><\/em>, the Court held that existing federal election laws do not prevent Mississippi, and by extension other states, from counting absentee ballots postmarked by election day but received up to five days thereafter. Barrett, however, very carefully noted that her opinion did \u201cnot consider the scope of Congress\u2019s authority to regulate federal elections\u201d through legislation, possibly a covert nod to the\u00a0Safeguard American Voter Eligibility (SAVE) Act<\/a>\u00a0that Trump has insisted Congress pass, which would outlaw nearly all mail-in voting.<\/p>\n The same is true for the Court\u2019s much-anticipated decision in\u00a0Trump v. Barbara<\/a><\/em>, on Trump\u2019s Executive Order declaring an end to birthright citizenship under the Fourteenth Amendment for the children of undocumented people. In years past, the Court would have unanimously rejected Trump\u2019s gambit. Instead, in a 5 to 4 opinion written by Roberts and joined by Barrett, the order was barely rebuffed for violating the text and history of the Amendment.<\/p>\n Roberts may have gained a small measure of redemption with his\u00a0Barbara<\/em>\u00a0opinion, but the Court\u2019s accelerating lurch to the right under his stewardship has done permanent damage to the institution, and sparked\u00a0renewed calls<\/a>\u00a0for radical reforms, including the imposition of term limits for the Justices and, most far-reaching of all, for an expansion of the bench to as many as thirteen members.<\/p>\n