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He is not calling balls and strikes. The chief justice is picking winners and losers.
When the Supreme Court’s new term opens today, public attention will be focused on the furious and hypocritical effort of President Donald Trump and Senate Majority Leader Mitch McConnell to ram through Judge Amy Coney Barrett as a replacement for the late Justice Ruth Bader Ginsburg before the voters remove both Trump and McConnell from power. The Senate Republican majority’s willingness to turn somersaults to distinguish this situation from the rationale they used to deny President Obama’s Court nominee a vote, or even a hearing, eight months prior to the 2016 election, is motivated in large part by their perception that Chief Justice Roberts is not a reliable conservative vote.
But isn’t he?
The end of the Supreme Court’s 2019-2020 term last June saw a flurry of analysis of the chief justice’s role on the Court and his legacy. After Roberts sided with the four liberal justices to extend equal-employment rights to gays and lesbians, and to deny the Trump administration the right to immediately terminate the DACA program, many on the right were irate. “Roberts has been a disappointment to conservatives,” Vice President Mike Pence told the Christian Broadcasting Network. “If the chief justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected,” Sen. Tom Cotton of Arkansas added. On the Senate floor, Sen. Ted Cruz of Texas declared: “Chief Justice Roberts has been playing games with the Court to achieve the policy outcomes he desires.” And Curt Levey, president of the Committee for Justice, wrote in The Washington Post that “the conservative dream of a solid majority on the Supreme Court is dead.” Meanwhile, a new Gallup poll gives the Supreme Court its highest approval marks in a decade, earning nearly equal majority support from Democrats (56 percent), Republicans (60 percent), and independents (57 percent).
Roberts remains reliably hard-line on the most fundamental issue facing our democracy: the growing imbalance of economic and political power.
So you could forgive the casual observer for believing the chief justice is simply calling “balls and strikes,” as he famously promised during his confirmation hearing. Writing in The New York Times immediately after the end of the last term, law professor Jonathan Adler suggested that Justice Roberts’s voting pattern “fails to conform to a predictable ideological pattern.”
Unfortunately, that view is incorrect. Roberts remains reliably hard-line on the most fundamental issue facing our democracy: the growing imbalance of economic and political power. If he gains yet another conservative colleague, the Roberts Court may become the most dangerous branch of government. While Roberts has taken great pains to maintain public confidence in an era of intense partisan polarization by not allowing the justices to continuously split 5-4 along party lines, he is actually one of the foremost guardians of the corporate class in the history of the Court. As such, he is actively working against the very social balance he sometimes appears to be championing by consistently voting in a way that compounds inequality of income, opportunity, and power, putting our democracy on a trajectory to implosion.
The long view on Roberts’s decidedly predictable jurisprudence was provided in a 2013 study by two law professors and Judge Richard Posner—one of the fathers of the law and economics movement. The study concluded that Roberts was the second most pro-business justice (after Justice Samuel Alito) during the period 1946 to 2011, and that “the Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts.” Despite siding with the liberal wing in several high-profile cases at the end of the last term, nothing has changed in regard to the chief justice’s decided tilt toward business interests.
Look no further than Roberts’s rulings on workers’ right to band together in order to protect our rights and exercise greater power in the workplace. Prior to his appointment to the United States Court of Appeals for the District of Columbia Circuit by President George W. Bush in 2003, Roberts, as a corporate lawyer, was one of the key architects of a radical expansion of the meaning and application of a little-known statute, the Federal Arbitration Act (FAA), to deprive both workers and consumers of their day in court when businesses, for example, fail to pay the minimum wage or sell an unsafe product. As chief justice, Roberts joined his conservative colleagues in further expanding the application and meaning of the FAA far beyond what Congress had intended, to not only seal off the courthouse door and compel binding arbitration (a process that corporations dominate), but once in arbitration, to prevent both consumers and workers from joining together to collectively seek a remedy.
If he gains yet another conservative colleague, the Roberts Court may become the most dangerous branch of government.
In 2011, in AT&T Mobility LLC v. Concepcion, Roberts joined the late conservative icon Justice Antonin Scalia in holding that an arbitration provision in the fine print of a consumer contract could not only prevent consumers from going to court but also prevent them from joining their claims in a class action arbitration. Liza Concepcion claimed that AT&T Mobility engaged in false advertising and fraud when it charged her sales tax on a “free” phone. Given the small amount of money often at stake in such cases, consumers like Concepcion can, as a practical matter, only bring their claims if they can join with others to do so. As Justice Stephen Breyer observed in his dissent, “agreements that forbid the consolidation of claims can lead small-dollar claimants to abandon their claims rather than to litigate.” Roberts joined a holding that such collective-action bans had to be enforced. Frankly acknowledging which parties would benefit from the decision, the opinion stated that “class arbitration greatly increases risks to defendants”—that is, the companies. UNLV law professor Jean Sternlight called the decision “a tsunami that is wiping out existing and potential consumer and employment class actions.”
Two years later, in 2013, Roberts again joined an opinion penned by Scalia, holding that the mere fact that a class action bar in an arbitration agreement prevented the “effective vindication” of statutory rights was nonetheless not sufficient to render it unenforceable. In American Express Co. v. Italian Colors Restaurant, the restaurant sued the credit card behemoth, arguing it violated antitrust laws, but the restaurant could not sustain the cost of litigating the complex claims by itself. “[T]he antitrust laws do not guarantee an affordable procedural path to the vindication of every claim,” Scalia held, joined by Roberts. To put it another way: Consumers, you are on your own.
In 2018, the chief justice doubled down against working people in a case called Epic Systems Corp. v. Lewis. There, the question was whether employers can force employees to enter into arbitration agreements as a condition of employment—on pain of being fired—and include in such agreements a waiver of any right to file a class action or even join with one other worker to file a claim. The National Labor Relations Board had ruled that such agreements are inconsistent with workers’ right to engage in “concerted activities for the purpose of ... mutual aid and protection” through a union or in court. The Board and federal courts had long held that workers’ rights under the National Labor Relations Act include the right to join together to enforce workplace rights under other laws, for example, the right to equal employment opportunity, or to be paid the minimum wage. Collective action is important in the employment context not only because the dollar value of any individual worker’s claim is often small, but also because individual employees often justifiably fear retaliation if they sue their boss alone.
Yet, in Epic Systems, Roberts joined an opinion written by newly seated Justice Neil Gorsuch, holding that the FAA requires that arbitration agreements—even those imposed on unwilling employees—must be enforced as written. The “inevitable result” of the decision, according to Justice Ruth Bader Ginsburg in her dissent, is “the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.” While Roberts sided with Gorsuch and the four liberal justices at the end of the last term in holding that Title VII of the 1964 Civil Rights Act formally protects LGBT employees against discrimination, his earlier decision in Epic is certain to undercut enforcement of that crucial protection of equality and dignity in the workplace.
Of course, weakening workers’ rights to sue could have been counterbalanced by support for resolving workplace issues through collective bargaining. And yet, the chief justice has not only joined decisions making it much harder for unrepresented workers to enforce legal rights in court or in arbitration, he has also voted to weaken workers who have joined together in labor unions. At the end of the 2017-2018 term, the chief justice joined a 5-4 conservative majority in Janus v. American Federation of State, County, and Municipal Employees, Council 31 to strike down an Illinois law providing that a union selected by a majority of employees can charge all the employees it is legally obligated to represent in collective bargaining a fair share of the cost of that representation.
Since the passage of the National Labor Relations Act in 1935, collective bargaining has incorporated the principle of majority rule: When employees choose by a majority vote to be represented by a union, the union has a legal duty to represent everyone, both members and nonmembers. The union’s duty extends even to representing nonmembers individually—for instance, if they are unfairly fired. To prevent free riders from benefiting from the union’s service without paying, the federal law covering the private sector and laws in almost half of all states covering the public sector approved charging nonmembers a “fair share” fee. This fee covers only collective bargaining and contract enforcement, thereby paying for the union fulfilling its duty to fairly represent nonmembers as well as members. It excludes the cost of electoral campaigns and other political or ideological activity.
While headlines focused on Roberts upholding the ACA, he simultaneously curtailed Congress’s power to regulate the economy to protect and empower the economically vulnerable.
In the landmark 1977 case Abood v. Detroit Board of Education, the Supreme Court found the fee was essential to preserving “labor peace” via the collective-bargaining process and did not violate nonmembers’ freedom of association. But in Janus, the majority, joined by Roberts, held that such fees in the states that grant collective-bargaining rights to public employees violated the First Amendment, wiping out 40 years of commonsense precedent. Dissenting, Justice Elena Kagan observed, “[T]he majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” She continued, “The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”
Explaining the chief justice’s vote this June to apply Roe v. Wade to strike down a Louisiana statute restricting access to abortion, Case Western University Law School professor Jonathan Adler wrote: “Chief Justice Roberts has hewed closely to precedent.” But in Janus, the chief justice did not issue even a murmur of dissent from Alito’s opinion tossing stare decisis out the window. As Kagan observed, “The majority overthrows a decision entrenched in this nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.” Noting the absence of any of the traditional reasons for overruling precedent, Kagan wrote, “The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.” The basis for Roberts’s vote in the case, that is, was simply that he wanted to weaken unions.
And as if to underscore his willingness to apply precedent differently depending on the class position of the litigants, just two years after overturning Abood in Janus, the chief justice voted not to review a parallel state rule requiring that all lawyers pay dues to their state bar association. In 1990, the Supreme Court had upheld mandatory bar dues in Keller v. State Bar of California, expressly basing its decision on Abood. But when a petition to take a case that challenged Keller reached the Court during its last session, Roberts was one of the justices who voted to deny it. Dissenting from the denial of review, Justice Clarence Thomas, joined by Gorsuch, wrote, “Now that Abood is no longer good law, there is effectively nothing left supporting our decision in Keller.” Yet despite having joined his conservative colleagues in kicking the Abood foundation out from under the prior bar decision, Roberts permitted state support for the organization of lawyers, but not rank-and-file workers.
Even in the decision most derided in conservative circles, Roberts’s opinion upholding the Affordable Care Act, the chief justice narrowed Congress’s power under the Constitution’s Commerce Clause, the primary source of federal protection for working people ever since the New Deal. Constricting the government’s ability to regulate and set rules for commerce has been a goal of conservative jurists for almost a century. Indeed, in a separate opinion in the ACA case, Scalia, quoting Alexander Hamilton, called the commerce power a “hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.” Roberts’s majority opinion upheld the ACA under Congress’s power to tax, but rejected the Commerce Clause as a basis for congressional action. Dissenting, Justice Ginsburg compared Roberts’s approach to the “Court’s former endeavors to impose categorical limits on the commerce power,” including those it applied in the 1930s to strike down early New Deal legislation, specifically the precursor to the National Labor Relations Act. So while headlines focused on Roberts upholding the ACA, he simultaneously curtailed Congress’s power to regulate the economy to protect and empower the economically vulnerable, worsening inequality at every level.
The same consistent pattern of ruling in favor of the powerful in the workplace, and being willing to overturn precedent to do so, is also exhibited in Roberts’s decisions concerning democracy.
Roberts has facilitated the reassertion of white supremacy through the disenfranchisement of voters of color.
In 2010, the chief justice joined a 5-4 majority in Citizens United v. FEC, overturning a decades-old precedent and striking down multiple provisions of federal election law that restricted the amount corporations can spend to influence elections. The decision rested on the proposition that “First Amendment protection extends to corporations.” Not only that, the Roberts Court effectively held that Congress is powerless to stem the undue influence of corporations in elections because “the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity.” Congress cannot “prevent corporations from obtaining ‘an unfair advantage in the political marketplace’ by using ‘resources amassed in the economic marketplace,’” the majority held. Blind to the impact of its decision, which has become painfully obvious in the ensuing decade, the Court posited, “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
Roberts has not only protected the political influence of the wealthy, he has also facilitated the reassertion of white supremacy through the disenfranchisement of voters of color. The chief justice himself wrote the majority opinion in Shelby County, Ala. v. Holder in 2013, striking down a key provision of the Voting Rights Act of 1965. Section 5 of the act required that states and localities with a history of disenfranchising voters of color obtain preclearance from the Justice Department or a federal court before making changes to voting rules. When he was a young lawyer in the Reagan administration in 1982, Roberts wrote a memo to the attorney general urging an “aggressive stance” against a strengthening of the Voting Rights Act, but Section 5 remained on the books. As chief justice, however, Roberts was able to radically weaken the effectiveness of the law. The decision has prompted many states to enact voter ID laws, roll back early voting, and purge voter registration lists.
The ultimate tool of the politically powerful is gerrymandering. Incumbents manipulate districts to retain power by diluting the votes of groups likely to vote them out of office, undermining elections and ultimately our democracy. Recent advances in data science have allowed the party in control of state government to take gerrymandering to a new level of precision. In essence, elected officials choose their electorates, rather than having electorates choose their elected officials.
In the Court’s most recent term, Roberts wrote the majority opinion in Rucho v. Common Cause, another 5-4 ruling, which barred the federal courthouse door to those seeking to challenge partisan gerrymandering. While acknowledging that the question was “how much partisan dominance is too much,” Roberts claimed the Court is unable to draw that line. “There are no legal standards discernible in the Constitution for making such judgments,” Roberts concluded. Gerrymandering is “incompatible with democratic principles,” the chief justice conceded, but he held that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” In other words, his Court would not protect those “democratic principles.”
The impact of Roberts’s opinion was eloquently laid bare in Kagan’s dissent:
The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences.
The chief justice’s track record of decisions in election law cases provides support for University of California, Irvine law professor Richard Hasen’s recent observation that “Roberts has shown himself much more sympathetic to the political rights of donors than to the rights of voters.”
In Citizens United, the conservative majority said the barrage of corporate money in politics would not cause the electorate to lose faith in our democracy. Yet a study from Harvard University shows that only 30 percent of millennials believe it’s essential to live in a democratic nation. Twenty-five percent actually said democracy is bad. That is the America we find ourselves in under the careful and deliberate jurisprudence of Chief Justice John Roberts.
Today, in John Roberts’s America, corporations have more rights than people. You can’t draft them. You can’t put them in jail. They have limited liability and, in many cases, don’t pay taxes. It is now easier to bust a union than form one. Too many politicians are choosing their constituents, not the other way around. Collective action and civil rights, the very foundations of a healthy democracy, are being whittled away by a chief justice masquerading as a moderate.
He is not calling balls and strikes. The chief justice is picking winners and losers. And time and time again, the winners in his Court are big business and the wealthy.
Today, in John Roberts’s America, corporations have more rights than people.
Early in his tenure as chief justice, Roberts mused about his place in history. “You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,” he remarked, referring, respectively, to the great chief justice known as the father of judicial review and to the infamous chief justice who wrote the Dred Scott decision, holding that slaves were not citizens. “The answer is, of course, you are certainly not going to be John Marshall,” Roberts continued. “But you want to avoid the danger of being Roger Taney.” Taney’s odious ruling in Dred Scott hastened a split in our democracy along sectional lines. Roberts’s decisions have widened the split between the wealthy and powerful on one hand, and everyone else on the other. They’ve exacerbated the growing economic and political imbalance that threatens to undermine democracy itself. Newly heightened by the nomination of Judge Barrett, this dangerous trajectory will only accelerate.
How bad is it? Since 1978, worker compensation has risen just 12 percent, while CEO compensation has risen 940 percent. According to the Economic Policy Institute, the ratio of CEO to worker pay increased from 30 to 1 in 1978 to 320 to 1 today. We’re approaching a tipping point, which may be closer than you think. No system can long endure that doesn’t serve its people and provide for its workers.
Whether Donald Trump and Mitch McConnell succeed in their effort to force another hard-right justice on the Court under illegitimate circumstances, the reality is that on the core question of the inequality of income, wealth, opportunity, and power between people who work for a living and those who employ them, there is already a solid five-vote bloc against working people. This majority appears indifferent both to precedent and consequence. And that is a threat to the stability of American democracy that seems likely right now to outlast both Donald Trump and Mitch McConnell, personified by no one more than John Roberts.
