Roberts Court Draws Partisan Fire—and Rising Public Acclaim

(Bloomberg) -- Pretty much no one is happy with U.S. Chief Justice John Roberts. And that may suit him just fine.

Vice President Mike Pence joined a chorus of right-wing criticisms of the Supreme Court’s leader, telling CBN News on Wednesday that the Republican-appointed Roberts “has been a disappointment to conservatives.” Pence rebuked Roberts for a handful of recent votes, including one in June to invalidate a Louisiana law restricting abortion.

Those attacks come even as liberals say the real problem is Roberts’s larger body of work and steady effort to bolster conservative legal causes. Roberts has signed on to recent orders restricting voting access during the pandemic and letting President Donald Trump keep building his border wall.

Together, the dueling critiques are bolstering an image Roberts has long sought to foster -- that of a court that decides cases independently, not based on ideological leanings or party preference.

“The chief justice is probably thrilled that conservatives are unhappy with his recent rulings,” said Adam Winkler, a professor at UCLA Law School. “Although profoundly conservative himself, with a strongly conservative voting record, Roberts has said he wants the Supreme Court to be seen as being outside of politics.”

Pence’s criticisms came on the same day that a new Gallup poll showed public approval of the Supreme Court at its highest level in more than a decade, at 58%. With both Democrats and Republicans giving positive marks, the court’s approval towers above Trump’s 41% mark and Congress’s 18% support in the most recent Gallup poll.

Conservative Five

The positive numbers came after the close of a Supreme Court term that by one measure was a conservative success. The five Republican-appointed justices formed the majority in 10 of the 14 rulings that were decided by 5-4 votes, according to Scotusblog, which tracks the court’s docket. The group backed religious rights, buttressed presidential power over federal agencies and curbed lawsuits by people claiming violations of their constitutional rights.

In addition, Roberts in recent weeks has joined his conservative colleagues in a series of emergency orders -- issued without argument or in many cases explanation -- that have limited voting rights, lifted coronavirus-related requirements on prisons and let Trump keep using diverted Pentagon funds to build border fencing.

“Even if he doesn’t always side with the Trump administration, the fact is he does so very frequently,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center. “Simply because Chief Justice Roberts can’t or won’t accept the most extreme and outlandish arguments put forth by Trump, it doesn’t make him liberal -- it just makes him a jurist who takes his job seriously.”

But conservatives have seized on high-profile exceptions to Roberts’s pattern, including his 2012 vote to uphold the core of Obamacare, his vote during the just-completed term to block Trump from ending the DACA deferred-deportation program and his vote in July against a Nevada church that sought to ease limits on the size of its services during the coronavirus pandemic.

Senator Ted Cruz, Republican from Texas, said on Twitter after the church vote that Roberts “has abandoned his oath.”

‘Deeply Alarmed’

“Conservatives are deeply alarmed that Roberts seems to be behaving like a politician rather than a judge,” said Carrie Severino, president of the Judicial Crisis Network, which has worked to secure confirmation of Trump’s court nominees.

The vilification of Roberts could help Republicans motivate their base in the November election, much as a Supreme Court vacancy in 2016 helped spur Trump voters then. Trump has already appointed two justices, Neil Gorsuch and Brett Kavanaugh, as well as more than 200 lower court judges.

Democrats are also trying to make a campaign issue out of the court, whose two oldest members, 87-year-old Ruth Bader Ginsburg and 81-year-old Stephen Breyer, are both Democratic appointees. The party’s platform is set to include a call for “structural court reforms,” a plank that ultimately could mean term limits for justices.

Roberts’s opinion in the abortion case could energize voters on both sides. Reproductive-rights advocates expressed alarm that he suggested a willingness to give states more freedom to restrict abortion.

But Roberts ultimately voted to strike down the law the court was reviewing -- Louisiana’s requirement that clinic doctors get privileges at a local hospital -- saying it was identical to a Texas measure the court invalidated four years earlier. And he showed little inclination to give conservatives their long-sought wish of overturning the 1973 Roe v. Wade decision, which legalized abortion nationwide.

The Louisiana ruling “has been a wake-up call for pro-life voters around the country who understand in a very real sense the destiny of the Supreme Court is on the ballot in 2020,” Pence said.

©2020 Bloomberg L.P.