Something is going on in the chambers of Chief Justice Roberts.
Last October, in the oral argument for Gill v. Whitford, the Wisconsin political gerrymandering case, the Chief Justice provocatively explained that “if you’re the intelligent man on the street,” you will know that the case will come down to the fact that the Court simply prefers one political party over the other. Worse yet, this will be true across the country, “[a]nd that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.” Best to keep the federal courts out of this inherently political fight.
A careful reader will recognize this position. This was Justice Frankfurter’s view in Baker v. Carr, decided in 1961. Frankfurter argued that the Court must carefully nourish public confidence by “complete detachment . . . from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.” But he lost this argument almost immediately. The Court took on malapportionment and entrenched interests in the name of democracy, and the public sided with the Court. The Chief Justice has no reason to expect a different result this time.
In the same Term when Chief Justice Roberts worries about the legitimacy of the Court, the justices appear poised to take on public sector unions for the third time, in Janus v. AFSCME. This is remarkable. On one side are arguments for individual rights and the First Amendment, backed by the right. On the other side are long-standing precedents and the apparent death of labor unions. What would our intelligent man on the street think about this case? How could our intelligent man not see this case but as a Republican attack on Democrats? Yet the Chief Justice seems unfazed.
From recent history, we know the Chief Justice is playing a sophisticated chess game. On January 22, the Court decided Artis v. District of Columbia, a supplemental jurisdiction case. All you need to know from this case comes from Justice Gorsuch’s dissent, which argued that the decision “clears away a fence that once marked a basic boundary between federal and state power.” This is heady stuff. After Artis, Gorsuch concluded, “[w]hat boundaries remain then?” Is our federalism is dead?
Curiously, Chief Justice Roberts provided the fifth vote in Artis. This is curious because Chief Justice Roberts authored the Shelby County opinion, where the Court went as far as to create a new doctrine – equality of states – in order to strike down important parts of the Voting Rights Act. Shelby County is a decision about our federalism on steroids. And if Justice Gorsuch is right, Shelby County stands in direct tension with Artis. Chief Justice Roberts cares more than most people about our federalism; and surely, our intelligent man on the street doesn’t care quite as much. His vote in Artis makes no sense, yet he chose not to explain it.
It is clear that the Chief Justice has a selective gaze. His upcoming votes in Gill and Janus will tell us a lot about his philosophy and the legacy of his Court. And about his consistency.
