The Roberts Court’s Constitutional Vision and You

As the commentary about the last term of the Roberts Court continues to pile up, we thought that we would highlight a few of the things that people are saying about the impact of the Roberts Court on ordinary Americans.

Some, like Adam Cohen of the New York Times, charged the Roberts Court with judicial activism, one thing that conservatives often decry. It cannot be denied that the Roberts Court eviscerated many important precedents in the last term and overturned the will of Congress, the states, and local governments. But, as Cohen points out, the focus on activism is what is harmful: “It is time to admit that all judges are activists for their vision of the law. Once that is done, the focus can shift to where it should be: on whose vision is more faithful to the Constitution, and better for the nation.”

And it is clear that, for most Americans, the Roberts Court view of the Constitution is not better for the nation. As an editorial in the New York Times illustrated:

In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter. …

When Chief Justice Roberts was nominated, his supporters insisted that he believed in “judicial modesty,” and that he could not be put into a simple ideological box. But Justice Alito and he, who voted together in a remarkable 92 percent of nonunanimous decisions, have charted a thoroughly predictable archconservative approach to the law. Chief Justice Roberts said that he wanted to promote greater consensus, but he is presiding over a court that is deeply riven.

It has been decades since the most privileged members of society — corporations, the wealthy, white people who want to attend school with other whites — have had such a successful Supreme Court term. Society’s have-nots were not the only losers. The basic ideals of American justice lost as well.

And Kermit Roosevelt of the Christian Science Monitor provided this assessment of the Roberts Court and what it means for American values:

The Roberts court does not believe that the due process clause provides much protection for the legal right to an abortion. It seems to favor corporate electioneering over student speech. And it believes that all government use of race offends the equal protection clause, whether it is done to segregate or to integrate. Equality, in this view, is not threatened by public schools coming to mirror residential patterns of racial segregation, but rather by the government considering race in trying to promote integration.

These are judgments about America's core constitutional values, about who we are as a people. Such rulings are not required by the words of the Constitution; indeed, for the past 40 or 50 years, Americans have lived with dramatically different interpretations of constitutional law. The court's decisions are holding a mirror up to society. To evaluate its performance, we need only ask if we recognize ourselves.

Judges’ views of the Constitution are important, and it should be the basis for determining who should be confirmed and who should not. When the Senate chooses to confirm judges because they are “qualified” and because they say they will simply interpret the law, not make it, senators are derelict in their duty to advise and consent. It was clear prior to their confirmations that Justices Roberts and Alito would interpret the law in a way detrimental to the rights of most Americans. Similar judges should be rejected.