Pause for a moment here to reflect that even these ethics rules do not apply to Supreme Court judges.Every December, the chief justice of the Supreme Court of the United States composes a “Year-End Report on the Federal Judiciary.” [...] It is not supposed to be the judicial version of the State of the Union so much as a trite message about how “great” things are going on the bench, usually with some boilerplate stats that show how hard judges are working.
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John Roberts’s 2021 review] has all the stylistic markings the media consistently praises Roberts for: It is good-natured, reassuring, and banal to the point of hokey. Never mind that things are far from OK within the judiciary—that the judicial branch has been captured by an army of conservative hacks and the Supreme Court has veered so sharply to the right that even the general public has noticed, dragging its poll numbers to record lows.
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Roberts’s annual review has all the charms of an old country goose: ordinary and unassuming from a distance, but an irritable, irascible beast that will peck your eyes out if you get too close.
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[L]ike a child who agrees to be grounded before the full extent of their misdeeds can be revealed, Roberts [...] raises the issue of judicial independence because Congress is finally considering reining in the rampant corruption he himself refuses to stop and punishing the ethics violators he refuses to hold accountable.
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The issue that seems to have sparked Congress’s concern—and Roberts’s pushback—is a scandal that rocked the judiciary last year. In September, a Wall Street Journal investigation revealed that 131 federal judges improperly heard cases involving companies whose shares the judge or members of the judge’s family held. Since that initial article (which covered only cases heard between 2010 and 2018), the Journal has reported that 136 judges subsequently informed the parties in 777 lawsuits that they should have recused themselves and that the cases could now be reassigned to other judges or reopened.
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The violations are too numerous to be chalked up as one-off errors and speak to a pervasive disregard for the rules and a culture of impropriety.
Congress recognized this right away. The House held a hearing in October on making judges’ financial disclosure forms available to the public (as they are for elected officials), which would help interested parties identify judges who should not be hearing their cases.
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The Senate Judiciary Committee has proposed modernizing judicial ethics rules and disclosure requirements. And Senator Elizabeth Warren and Representative Pramila Jayapal have expressed interest in legislation that would impose civil sanctions on judges who fail to recuse themselves when they should.
Roberts refuses to brook any of this. In his year-end report, he hits back against the possibility of congressional interference by trying to make people believe the whole problem can be solved with more webinars. “Collectively,” he writes, “our ethics training programs need to be more rigorous."
The Nation
(Interview with the author of the above article, Elie Mystal.)
And the ones at the top, including Roberts, pretty much are.Roberts takes much the same approach to what he calls “inappropriate behavior in the judicial workplace” (which I can only assume refers to sexual harassment, though Roberts declines to name it). Despite consistent reports of sexual harassment and misconduct in the judicial branch, Roberts claims, not for the first time, that “inappropriate workplace conduct is not pervasive within the Judiciary.” He then goes on to suggest that expanded guidance and training should resolve the few cases he is willing to admit actually happen. What won’t be necessary is congressional interference.
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The report is framed by a discussion of William Howard Taft. Roberts presents Taft as a chief justice who, despite having been president, upheld the principles of judicial independence. But history remembers Taft’s time on the court as one that was terrible for workers: The man literally struck down a tax on companies that used child labor. Taft’s most famous case is one in which he upheld the president’s right to dismiss federal officials without Senate approval.
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And [Roberts] knows that even if people did know these things, Democrats in Congress and the White House lack the strength or the vision to rein him and his cohorts in
Roberts’s cries for judicial independence are actually demands that the judiciary be placed above accountability.
Let's go further back in Roberts' history...Supreme Court Justice Sonia Sotomayor wondered during oral arguments Dec. 1 on Mississippi’s anti-abortion legislation whether the Supreme Court as an institution could survive the “stench” from overturning 50 years of precedent of its Roe v. Wade decision.
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[B]ut the Roberts court’s stench became noticeable with its [earlier voting rights decisions].
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[T]he Roberts court at the end of its 2020 term made it more difficult to challenge voting restrictions post facto. Its decision in Brnovich v. Democratic National Committee said that Section 2 of the [Voting Rights Act], which banned nationally racial discrimination in voting, applied only to intentional discrimination, not to acts that have the effect of disadvantaging racial groups, a standard that will be difficult to meet, intentions being much harder to prove than effects.
The Roberts court’s “stench” comes from decisions that have eroded the principle on which our constitutional republic was founded, i.e., the people are the ultimate sovereigns in America, and they exercise that sovereignty through voting, initially by voting to ratify the Constitution. Examples of such Roberts court decisions include Shelby and Brnovich as well as Citizens United v. FEC (2010), which reversed long-standing campaign finance restrictions.
The Hill
[President Ronald] Reagan said that the Voting Rights Act humiliated the South. Reagan brought in a guy to figure out how to oppose the 1982 Voting Rights Act amendment, and that guy is John Roberts. John Roberts got his legal start arguing against the Voting Rights Act.
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He is a friend and a handmaiden to White supremacy. People look at his persona and they're saying he can't possibly be that bad. It's because very few people have actually read his decisions and actually understand his entire history on these issues.
Elie Mystal CNN interview
That was then. They no longer care. They just deny it and go on, even when it's obvious.John Roberts was 26 years old. [...] It was 1981.
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[A]s an aide to Attorney General William French Smith, Roberts was tasked with making the case against one of the most consequential voting rights laws in the nation’s history.
The House had recently passed legislation extending the Voting Rights Act of 1965 — a seminal civil rights bill that dismantled much of Jim Crow — and shoring up one of its key provisions after a 1980 Supreme Court decision had severely weakened the law.
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“Something must be done to educate the Senators on the seriousness of this problem,” Roberts wrote his boss, Smith, just a few days before Christmas. In a subsequent memo, he argued that the rapidly advancing bill — which now forms much of the backbone of American voting rights law — was “not only constitutionally suspect, but also contrary to the most fundamental tenants [sic] of the legislative process on which the laws of this country are based.”
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Though President Reagan preferred a weaker voting rights law — he once described the Voting Rights Act as “humiliating to the South” — the conservative president eventually bowed to political pressure and signed the legislation Roberts deemed contrary to many of our nation’s “most fundamental” tenets.
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President George W. Bush made him chief justice of the United States in 2005. Roberts is now the most powerful judge in the country. As Congress has grown more and more dysfunctional, the Supreme Court is increasingly the locus of policymaking within the United States.
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Among other things, Roberts dismantled much of the Voting Rights Act in Shelby County v. Holder (2013), and he’s joined decisions making it much harder for voting rights plaintiffs to prove they were victims of discrimination. On the basic question of who is allowed to vote and which ballots will be counted, the most important issue in any democracy, Roberts is still the same man who tried and failed to strangle the Voting Rights Act nearly four decades earlier.
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As originally enacted, the Voting Rights Act required jurisdictions with a history of racist voting discrimination to “preclear” any new voting-related laws with the Justice Department or with federal judges in Washington, DC. But this preclearance provision was initially scheduled to expire five years after the law was signed in 1965.
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Congress [...] chose to extend this requirement again in 1975, in 1982, and in 2006. Each time the Voting Rights Act was renewed, it was signed by a Republican president — including at least two Republicans who’d previously criticized the law.
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Although [in 2006] President Bush initially displayed some ambivalence toward Voting Rights Act renewal, and some members of his Justice Department advocated scrapping preclearance, legislative opposition to the renewal never got too far off the ground.
As Edward Blum, a wealthy anti-civil rights activist who would go on to be the driving force behind the Supreme Court case that gutted preclearance in 2013, complained in a 2006 National Review article, “Republicans don’t want to be branded as hostile to minorities, especially just months from an election.”
Vox
What powers Congress has not thrown away to the executive branch, it's throwing away to the judicial branch.Justice Antonin Scalia gave voice to [Republican] frustration during oral arguments in Shelby County v. Holder (2013), the Roberts Court case that quashed preclearance. The Voting Rights Act, Scalia claimed, was a “perpetuation of racial entitlement,” and “whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
“I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia continued. “And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”
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And so the Supreme Court’s Republican majority stepped up to cure this perceived injustice. Chief Justice Roberts led the charge.
Roberts’s majority opinion in Shelby County posits that the United States simply isn’t racist enough to justify a fully operational Voting Rights Act.
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Black voter turnout “has come to exceed white voter turnout in five of the six States originally covered by” Section 5, Roberts claimed.
Preclearance worked. So there was no longer any need for it.
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One of the most famous was raised by Justice Ruth Bader Ginsburg in her dissenting opinion: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
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Another problem is that nothing in the Constitution suggests that the Supreme Court gets to decide whether the United States is racist enough to justify extraordinary measures to halt that racism. To the contrary, the Fifteenth Amendment provides that the right to vote “shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” and it gives Congress the “power to enforce this article by appropriate legislation.”
That article has a nice summary of the history of the Voting Rights Act if you are curious about it.Almost immediately after the Supreme Court decided Shelby County — which, among other things, allowed North Carolina to enact new voting laws without federal supervision — North Carolina’s GOP-controlled legislature began work on an omnibus bill that combined several provisions making it harder to cast a ballot.
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The state’s new election law, in the words of a federal appeals court that struck it down, targeted “African Americans with almost surgical precision.”
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North Carolina is just the tip of a much larger iceberg. Roberts and his fellow Republican justices have already taken bold steps to undercut American voting rights. And they are likely to do much more.
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In 2015 [...] Roberts voted to eliminate a federal ban on housing discrimination that has a disparate impact on people of color. But Roberts wound up joining a dissenting opinion in that 2015 case because Justice Anthony Kennedy, a relatively moderate conservative who retired in 2018, voted with the liberal justices to preserve the fair housing law. Now, however, Kennedy is gone. And his replacement, Justice Brett Kavanaugh, is, if anything, even more hostile to voting rights than Chief Justice Roberts.
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[In 2020,] the Court’s Republican majority, in an unsigned opinion joined by Roberts, held that many [mail-in] ballots must be trashed [...] . The crux of the Court’s decision in Republican National Committee v. Democratic National Committee (2020) is that it is more important to prevent courts from altering “the election rules on the eve of an election” than it is to ensure that every vote is counted. And this rule apparently applies even if a sudden, unanticipated crisis [such as the Covid-19 pandemic that arose early that year] risks disenfranchising thousands of voters.
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This moment of profound peril for American democracy is, in many ways, Roberts’s doing. He’s worked his entire career to undermine voting rights.
...but hey, do what you want...you will anyway.
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