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Will Politics Tarnish the Supreme Court’s Legitimacy?

Remarks by Chief Justice John G. Roberts Jr. during arguments in the Wisconsin gerrymandering case caused concern among progressives.Credit...Drew Angerer/Bloomberg

There’s been a flood of hand-wringing and tut-tutting over some observations that Chief Justice John G. Roberts Jr. offered during the argument earlier this month in the big Wisconsin gerrymander case. He dismissed as “sociological gobbledygook” the metrics the plaintiffs offered for determining when districting decisions cross the line from ordinary politics to blunt force. He warned that the court would be putting its legitimacy in the eyes of the public on the line if it became the state-by-state arbiter of partisanship gone too far.

“Gobbledygook” has received the most attention, some playful and some fairly snarky. A public letter addressed to the chief justice from Eduardo Bonilla-Silva, president of the American Sociological Association, was somewhere in between (with a dose of academic self-importance for good measure). He offered to “put together a group of nationally and internationally renowned sociologists to meet with you and your staff,” adding that “given the important ways in which sociological data can and have informed thoughtful decision-making from the bench, such time would be well spent.” Doubtless.

My interest is not in the chief justice’s flippant remark, but in his serious one. He was addressing Paul M. Smith, the lawyer for the Wisconsin Democrats who, in the lower court, successfully challenged a Republican-drawn state Assembly map that gave Republicans 60 out of the 99 seats although the party drew only 48.6 percent of the statewide vote. (By a 5 to 4 vote in June, the justices granted Wisconsin a stay of the lower court’s decision striking down the redistricting map, to last until the Supreme Court itself decides the case, Gill v. Whitford. Dissenting from the stay were Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.) The chief justice observed to Mr. Smith that if the plaintiffs prevailed, “there will naturally be a lot of these claims raised around the country.”

He went on: “We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board. And if you’re the intelligent man on the street and the court issues a decision, and let’s say the Democrats win, and that person will say: ‘Well, why did the Democrats win?’ ”

At this point, Chief Justice Roberts offered a rough approximation of the plaintiffs’ formula-driven approach to map drawing, and continued: “And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And 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.”

Although the chief justice had not, in fact, posed a question, Mr. Smith ventured an answer: “It may be that you can protect the court from seeming political, but the country is going to lose faith in democracy, big time.”

A cogently expressed concern, cogently countered. Will Chief Justice Roberts derive comfort from the “damned if you do, damned if you don’t” nature of the choice before the court? Not likely, but that’s not my point. It’s easy enough to poke a sharp stick in the chief justice’s late-acquired worry about the Supreme Court sullying its hands in politically fraught cases. What about Citizens United, one might ask, or Shelby County v. Holder, with the chief justice’s majority opinion that by a vote of 5 to 4 dismantled the recently reenacted Voting Rights Act? That’s not my point either. “Wisdom too often never comes, and so one ought not to reject it merely because it comes late,” Justice Felix Frankfurter once wrote. He might have said the same for the judicial modesty the chief justice seemed to be advocating when it comes to addressing gerrymanders.

I’d like to take seriously the chief justice’s evident worry about the Supreme Court’s legitimacy and play it out a bit. The concern is not a new one for John Roberts. It infused his dissenting opinion two years ago in the same-sex marriage decision, Obergefell v. Hodges. Last April, shortly after the confirmation of Justice Neil Gorsuch, Chief Justice Roberts spoke at Rensselaer Polytechnic Institute in Troy, N.Y., and expressed the fear that the sharply partisan confirmation process would damage the court in the public’s view.

“It is a real danger that the partisan hostility that people see in the political branches will affect the nonpartisan activity of the judicial branch,” he said then, adding: “It is very difficult, I think, for a member of the public to look at what goes on in confirmation hearings these days, which is a very sharp conflict in political terms between Democrats and Republicans, and not think that the person who comes out of that process must similarly share that partisan view of public issues and public life.”

So I can only imagine what the chief justice felt last week when Senator Mitch McConnell, the majority leader, stood next to President Trump and made this public declaration: “The single most significant thing this president has done to change America is the appointment of Neil Gorsuch to the Supreme Court.”

And assuming, as I do, that Chief Justice Roberts is a close student of public opinion polls, I wonder what he makes of a new Gallup Poll, out last month, showing that for the first time since 2008 more Americans say the Supreme Court is too conservative rather than too liberal. The gap isn’t huge — 30 percent “too conservative” to 23 percent “too liberal” — but the shift in public perception is sudden and significant. In 2015-16, following the same-sex marriage ruling, “too liberal” outstripped “too conservative” with a gap of 17 percent. Gallup’s analysis suggests that the shift may be less because of any specific cases than of public knowledge that Republicans control two branches of government and seem to be in a position to exert heavy influence on the third. In other words, the public is seeing the court and its future not in isolation but in context.

The chief justice also has to know that for the first time in the court’s modern history, the individual justices are ideologically aligned with the party of the president who appointed them. There are no crossovers, no William Brennan or Harry Blackmun or John Paul Stevens, Republican-appointed justices who ended their careers as liberals, and no Byron White, appointed by President John F. Kennedy and a dissenter from the court’s liberal rulings on abortion and criminal procedure. That in itself is cause for concern for a chief justice inclined to worry that people will look at Supreme Court justices and see partisans.

I assume these thoughts were not far from his mind as he mused aloud during the gerrymander argument. And I’d like to suggest that rather than wringing their hands, progressives might take heart. Whatever happens with this case — a harder case than many good-government types have admitted publicly or even privately — there are many more political hot-button cases on their way to the Supreme Court: voter ID cases, racially discriminatory redistricting cases, even other gerrymander challenges litigated under different constitutional theories.

In the recent past, Chief Justice Roberts has seemed to me a bit too openly eager to get the court’s hands on these issues. Twice in the past term, the court decided against taking up highly charged political cases. It let stand lower court rulings that invalidated a voter ID requirement in Texas and that deemed discriminatory a series of voting changes in North Carolina. In each case, the chief justice, writing only for himself, issued statements to underscore that the court was bypassing the cases for essentially procedural reasons and not because the justices agreed with the lower court rulings. These solitary personal statements in the Texas and North Carolina cases served no purpose that I could discern other than to keep up the spirits of the states that would continue to defend their problematic statutes.

The Texas voter ID case is highly likely to return to the court. When it does, and when similar cases arrive at the Supreme Court’s door as the next redistricting cycle grows ever closer, will the chief justice take the court into the fray, or will he think back to what he said to Paul Smith and decide that the court’s interests are best served by sitting it out?

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