Since Bush v. Gore and the selection of the president by the Supreme Court, it has been a downhill slide for the nation’s ultimate judicial body — in the court of public opinion, that is. The watershed ruling in Citizens United — which opened the floodgates for unlimited money in elections — only solidified the growing public sentiment that the court is dominated by partisan political hacks, on the take and in the pockets of rich and powerful interests. That Justices Thomas, Scalia and Alito attended fundraisers by the Koch Brothers and other blatantly political events creates a conflict of interest, and undermines any presumption that these justices are fair and impartial.
It is no wonder that public approval of the Supreme Court stands at historic lows, with a majority of people believing the justices make their decisions based on ideology rather than the law. One recent poll had approval of the court at 44 percent, down from a high of 66 percent in the late 1908s, and 50 percent in 2000.
Judges are people, too. They have their own “opinions” outside of the opinions they (and their law clerks) write. And they read the newspapers, and they see the protests that take place regularly on the courthouse steps.
Citing his nuanced votes upholding Obamacare and striking down important aspects of Arizona’s immigration law, some legal observers have described Roberts as a pragmatist. To be sure, Roberts has called for consensus and judicial modesty on the bench. However, a number of his recent decisions shatter that notion, including striking down the Montana law setting limits on corporate campaign finance. Then there was his dissent in the recent court opinion that struck down mandatory life without parole for juveniles. Further, the chief justice has only twice broken a tie by siding with the liberal justices.
It is plausible that Roberts’ Obamacare decision was strategic, that he will use this as an insurance policy to shield him from critics who accuse him of political partisanship. Such a strategy could serve him well, given the upcoming challenges to the Voting Rights Act, bans on gay marriage and affirmative action at the University of Texas. The justice has already expressed opposition to affirmative action in government programs.
If Chief Justice Roberts resumes his place among the conservatives on the Supreme Court, it will not come as a surprise. On the other hand, maybe he is evolving into a liberal. And maybe President George H. W. Bush was right when he said Clarence Thomas was “the best man” for the job.
Follow David A. Love on Twitter at @davidalove