The Supreme Court is much less popular and much more divisive today than it was when John Roberts was sworn in as the 17th Chief Justice on September 29, 2005. And at least much of that is his fault.
Did you notice the speech by Justice Thomas this weekend to the effect that the Supreme Court can and should ignore precedent it doesn't like? Not a good sign.
Seems to me this is an example of a pretty anodyne comment that takes larger significance because it's Justice Thomas who says it.
It's a pretty common belief that bad precedents should be cabined and sometimes overruled. How far you take that is somewhat more controversial.
The issue is that Justice Thomas has a broad understanding of what a "bad precedent" is, and couples that with a deeply un-conservative willingness to reach those issues when not before the Court and when not required to resolve a particular dispute.
Compare the Thomas concurrence in Dobbs ("we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell") with Kavanaugh's concurrence ("[t]he history of stare decisis in this Court establishes that a constitutional precedent may be overruled only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests").
It's also significant in light of its timing and the Court's willingness to ignore things that might stand in the way of doing what it wants, e.g., Humphrey's Executor and the impoundment cases (and the law and the underlying Constitutional provisions).
Not a good sign, but also not an unexpected one, especially given Dobbs. (Or much of Justice Thomas's jurisprudence over the past 34 years. Or his "gifts" from billionaire "friends.")
I hope the Roberts Could will someday be known as the modern Lochner court-- many of its horrible decisions overturned and broadly recognized as lawless and disgraceful.
I’m not certain of the right word—hypocrisy isn’t quite strong enough—but I cannot avoid the observation that the Court that propounds “originalism” as its guiding principle, to the point of adopting the vestments of professional historians, is the same Court that is now discarding precedent as a key factor in its decisions. After all, originalism is the ultimate precedent, reaching back to English lanaguage usage in the Middle Ages at points to explain to us what the people who voted to adopt the Constitution understood what they were approving. (All BS)
But, I have a less legal “explanation” of Roberts. He struck me as always having a RW agenda, but would achieve it by other rulings, especially on voting, so the Court remained legit, but the voters were set up to achieve his ends.
Then, 2 events occurred: the Leo-Trio came to the Court marginalizing Roberts unless he joined the Trio (and Thomas and Alito) who would now control the Court. (Steve, has that happened before?)
And secondly, their corruption was exposed. I never recall considering personal financial corruption as applying to the Court. Fortas was a very minor event w poor optics. This stuff is huge.
I have been 100% accurate predicting Court decisions by ignoring the law, and just analyzing it from the perspective of their need to retain a political buffer from investigations, indictments, and even a strong forward looking ethics law (that Barr said would cause an exodus of the RW justices!).
And, it really comes down to race: Roberts and Alito cut their teeth in the Reagan DoJ where the prospect of minorities voting in large numbers, esp in the South, would undermine the Senate majority the passage of the VRA gave them, as LBJ predicted.
Three other points: w their shadow docket, I have a diff read on the “SCOTUS” moniker: Star Chamber of the United States.
Abandoning precedent surrenders a key element of legitimacy of a countermajoritarian branch in a majoritarian designed govt structure. See eg “The Least Dangerous Branch”, Alex Bickel whom I think was the first to address that anomaly directly.
To add perhaps an obvious point to corruption, the billionaire donors can easily leave hints abt next vacation period being better or worse depending on how a Justice votes.
The refusal of this court to install an enforceable ethics code put an end to its legitimacy. Two of the justices would have been out in an earlier era, but continue to serve notwithstanding their obvious lack of judicial ethics. If the Democrats somehow get back into power they must abolish the filibuster, add five new members to the court, create a “good behavior” standard to supplement impeachment and show the miscreants the door. The new court should exercise its sua sponte powers and summarily reverse the most ridiculous decisions of the Roberts court. Let Thomas complain if he has the nerve to.
The Court represents big money and the billionaire donors that put them in positions of power. If anything they are afraid of "the people" and don't really care what "the people" think. For the Court the concept of "of the people, by the people and for the people" is a passe concept not that different from stare decisis. We exist in a full blown plutocracy where the golden rule is in effect: them with the gold makes the rules. The Court is just responding to the wishes of big money. After all Harlan Crow is Justice Thomas' best friend and confidant.
The plutocracy will eventually pass but then the question will become what takes its place and will it still be a democracy. Greek political theory would suggest a democracy follows oligarchy (plutocracy is a form of oligarchy) but given the world today the answer does not seem very certain.
I’m increasingly coming to the conclusion that President Newsom must pack the court if we are to have any chance of our democracy surviving.
Still doesn’t address the reality that we probably won’t have fair or free elections and SCOTUS will pick up right where they left off in Bush v. Gore and officially end elections.
Is it that the Chief Justice doesn’t accept that the Court is losing credibility on a daily basis; that he thinks the Court doesn’t need that credibility in order to fulfill its intended role in our constitutional system; or that he doesn’t care?
Your statement reminds me of another you made in a podcast interview in Texas a few years ago where in you surmised that some justices become crankier (Scalia, for example) & more likely to express caustic opinions as their tenure extends to 2 decades or so.
This commentary is excellent and much needed as a tool for critical thinking about our SC. I cannot understand how our justices can justify their failure to explain the decisions they make on the shadow docket. Every litigant, rich or poor, popular or otherwise, deserves to know why his/ her/ their claim failed. And the lower court judges who work so hard to decide cases also deserve an explanation from the SC. Transparency does not exist in a court which issues orders without the sunlight of explanation.
Thank you proving a perspective and shedding light on the role of Chief Justice Roberts. From my citizen’s, non-lawyer perspective – or bias – he seems to me to be even more reprehensible in his pursuit of the upending of the Constitution and support of injustice than the more obvious single-minded advocates of the perverted doctrines of originalism and the unitary executive, notably Justices Alito and Thomas. I am not a mind reader but I do pose the question of whether Roberts is a tortured individual struggling honestly to reconcile conflicting impulses – like Saint Augustine, "Lord, make me chaste, but not yet!" – or is a person trying disingenuously to convince us that he is a genuinely “good guy” looking nobly and honorably for solutions that will keep the country and Constitution intact in the face of fundamental divisions on the Court and within the nation of what that requires. Two of the most appalling decisions – again from my own perspective – during his tenure are Heller in 2008 and Citizens United in 2010 (both 5-4 rulings with which he concurred, well before the Trump era. ). The Citizens United decision wa written by Justice Anthony Kennedy. Roberts concurred in that 5-4 ruling along with the then usual conservative (whatever that word means any more) suspects of Alito, Thomas, and Scalia, holding that corporate and union spending on independent political broadcasts are a form of protected free speech and cannot be limited. Citizens United has given free rein to the increasing reign of corruption that is permeating throughout US society, a consequence that should have been obvious at the time let alone today to anyone who knows anything about human nature, the exercise of power, and the influence of money. Heller was another 5-4 ruling that affirmed an individual right to possess firearms for self-defense, overturning a total handgun ban in Washington D.C., presumably ignoring the introductory (but now anti-originalist words) of the Second Amendment, “"A well regulated Militia, being necessary to the security of a free State,….” Are individuals acquiring very lethal weaponry required to prove that they are members in good standing of a “well regulated militia,” and, if so, do the Oath Keepers and Proud Boys qualify? Again, are Justices oblivious to the consequences of their decisions in the United States of the 21st century, which is no longer a frontier state, while weaponry today has no relationship in its lethality to the muskets and pistols that the Founders of our country were familiar with and used to defeat the British Empire. One might as well argue that since horses and carts are modes of transport and so are Airbus and Boeing jet planes, the latter should not be regulated differently from the former. Do not these examples prove that Roberts’ dark side (my bias again) has always been there, and is now being supercharged and able to manifest itself in full force and unrestrained in the Trump era?
My question is this: Have lawyers made the “law” impossible to understand for the lay person purposefully, or did it just happen by chance.? I am an old lady and will admit that my comprehension has slipped a bit but most of this is gibberish if one does not use a score card!
I know Prof. Vladeck is explicitly trying to make the Court and its issues more accessible in this column, but, well, law is complicated. Always has been. More accessible doesn't mean always accessible, plus it always depends on the specific legal questions being addressed.
Still, the main point here is merely that Chief Justice Roberts's rightward turn is both clearly happening as well as contradictory to his jurisprudence during his first 15 years on the bench. It's not clear if anyone aside from Roberts himself understands the reasons for it. He's pivoted from being an institutionalist – heavily prioritizing the Court's own stalwart standing – to actively allowing Trump to do much of what he wants, despite Congress having the power of the purse (under the Constitution) and him actively defying plainly *established* law.
Trump seems to think he can unilaterally "overrule" any given law. The horrifying part is that the Supreme Court is letting him do so, far more often than not.
I think Roberts will be known as the no. 1 worst chief justice rather than the 4th or 3rd longest serving. If he’d quit dying his hair like the sissy he is, we would know there is little chance he will make it to the second longest serving criminal of the supreme criminals.
I was not defending the court. I was commenting on your consistent ideological driven interpretation of American jurisprudence. One doesn’t really have to read your articles because one already knows the endpoint. As Eric Segall commented- Liberal vibes good, conservative vibes bad.
First, most of my writing here is actually *not* about the Court's substantive jurisprudence, but rather its history and procedural behavior.
Second, if you actually *did* "read [my] articles," you not only might *know* that, but you might also deign to provide at least some analytical support for your otherwise unsubstantiated claim that my writing reflects an "ideological[ly?] driven interpretation of American jurisprudence."
I guess not thinking you have to explain yourself isn't limited to the Supreme Court these days.
Roberts, the Voting Rights Act hating Reaganite, was going to have a notable reign (a debatable term) but the Trump justices truly made his Court horrible. The voting rights stuff was bad anyhow though it took Kennedy leaving for them to seal the deal with partisan gerrymandering.
(I think that opinion -- though I oppose it -- could be defended on judicial restraint grounds but you can't have that case AND Shelby v. Holder & have that hold much water.)
One low point was Roberts ranting about how the same sex marriage opinion, which (like it or not) was a logical conclusion to the gay/lesbian cases (which fit into a wider series of cases) as somehow not constitutional law. He even felt it necessary to dissent from the bench.
The author of this Substack opposes court expansion. He fears it will taint the Court. Well, the Court is tainted with a strong Trump connection. Kennedy seems to be his buddy. Thomas and his wife are MAGA & Thomas is at this point illegitimate with all his ethical problems.
Each Trump nominee had a tainted nomination for one reason or the other. Trump v. U.S. was a clear jump the shark moment. This Court is tainted. Reform without addressing personnel is not enough. And, yeah, Dobbs was a travesty. And that was just ONE of them!
While I continue to cling to the faint hope that the chief justice has some sort of master plan here that will somehow explain his various rulings, it dims further by the day as the Roberts court keeps permitting EO after EO that flagrantly violate statutory law.
That being said, what I'm wondering now is where, specifically, Roberts is willing to draw at least one red line. (Other than the Lisa Cook case, where a ruling in Trump's favor remains unlikely. Maybe.) I know the Court likely won't hear anything in the Comey indictment case – and God help us if I'm mistaken – but it's at least possible and certainly stands as one of Trump's most brazenly warped attacks to date.
I'm assuming Chief Justice Roberts is fully aware of the damage being inflicted by the Court's rulings, and that he's knowingly risking his own legacy by enabling further lawlessness & tyranny. Particularly given the broad trend of Republican appointees from recent decades ending their terms on the Court following turns to the left on key issues (mainly Justices O'Connor, Souter & Kennedy), Roberts's own pivot in the opposite direction is more perplexing still.
At this point it's not clear whether Roberts has *any* red line, aside from Cook & Comey. And while I never expected the Court's 2025-2026 term to be even more stomach-churning (within the legal world) than post-election 2020, we may be at exactly that point. Has the line now vanished?
This is the UnAmerican scotus. They DO NOT represent The People.
EXTREME not Supreme!
Absolute destruction!
Did you notice the speech by Justice Thomas this weekend to the effect that the Supreme Court can and should ignore precedent it doesn't like? Not a good sign.
EDIT: The speech was Thursday, https://abcnews.go.com/Politics/justice-clarence-thomas-legal-precedents-gospel/story?id=125967044
Seems to me this is an example of a pretty anodyne comment that takes larger significance because it's Justice Thomas who says it.
It's a pretty common belief that bad precedents should be cabined and sometimes overruled. How far you take that is somewhat more controversial.
The issue is that Justice Thomas has a broad understanding of what a "bad precedent" is, and couples that with a deeply un-conservative willingness to reach those issues when not before the Court and when not required to resolve a particular dispute.
Compare the Thomas concurrence in Dobbs ("we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell") with Kavanaugh's concurrence ("[t]he history of stare decisis in this Court establishes that a constitutional precedent may be overruled only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests").
It's also significant in light of its timing and the Court's willingness to ignore things that might stand in the way of doing what it wants, e.g., Humphrey's Executor and the impoundment cases (and the law and the underlying Constitutional provisions).
I'm not sure I'd characterize his description of previous Courts dreaming rulings up and inventing new law out of whole cloth as "anodyne."
It strikes me that his ill-considered, unsubstantiated statements hew at the very ankles of Dame Justice.
Not a good sign, but also not an unexpected one, especially given Dobbs. (Or much of Justice Thomas's jurisprudence over the past 34 years. Or his "gifts" from billionaire "friends.")
I hope the Roberts Could will someday be known as the modern Lochner court-- many of its horrible decisions overturned and broadly recognized as lawless and disgraceful.
I’m not certain of the right word—hypocrisy isn’t quite strong enough—but I cannot avoid the observation that the Court that propounds “originalism” as its guiding principle, to the point of adopting the vestments of professional historians, is the same Court that is now discarding precedent as a key factor in its decisions. After all, originalism is the ultimate precedent, reaching back to English lanaguage usage in the Middle Ages at points to explain to us what the people who voted to adopt the Constitution understood what they were approving. (All BS)
But, I have a less legal “explanation” of Roberts. He struck me as always having a RW agenda, but would achieve it by other rulings, especially on voting, so the Court remained legit, but the voters were set up to achieve his ends.
Then, 2 events occurred: the Leo-Trio came to the Court marginalizing Roberts unless he joined the Trio (and Thomas and Alito) who would now control the Court. (Steve, has that happened before?)
And secondly, their corruption was exposed. I never recall considering personal financial corruption as applying to the Court. Fortas was a very minor event w poor optics. This stuff is huge.
I have been 100% accurate predicting Court decisions by ignoring the law, and just analyzing it from the perspective of their need to retain a political buffer from investigations, indictments, and even a strong forward looking ethics law (that Barr said would cause an exodus of the RW justices!).
And, it really comes down to race: Roberts and Alito cut their teeth in the Reagan DoJ where the prospect of minorities voting in large numbers, esp in the South, would undermine the Senate majority the passage of the VRA gave them, as LBJ predicted.
Three other points: w their shadow docket, I have a diff read on the “SCOTUS” moniker: Star Chamber of the United States.
Abandoning precedent surrenders a key element of legitimacy of a countermajoritarian branch in a majoritarian designed govt structure. See eg “The Least Dangerous Branch”, Alex Bickel whom I think was the first to address that anomaly directly.
To add perhaps an obvious point to corruption, the billionaire donors can easily leave hints abt next vacation period being better or worse depending on how a Justice votes.
The refusal of this court to install an enforceable ethics code put an end to its legitimacy. Two of the justices would have been out in an earlier era, but continue to serve notwithstanding their obvious lack of judicial ethics. If the Democrats somehow get back into power they must abolish the filibuster, add five new members to the court, create a “good behavior” standard to supplement impeachment and show the miscreants the door. The new court should exercise its sua sponte powers and summarily reverse the most ridiculous decisions of the Roberts court. Let Thomas complain if he has the nerve to.
The Court represents big money and the billionaire donors that put them in positions of power. If anything they are afraid of "the people" and don't really care what "the people" think. For the Court the concept of "of the people, by the people and for the people" is a passe concept not that different from stare decisis. We exist in a full blown plutocracy where the golden rule is in effect: them with the gold makes the rules. The Court is just responding to the wishes of big money. After all Harlan Crow is Justice Thomas' best friend and confidant.
The plutocracy will eventually pass but then the question will become what takes its place and will it still be a democracy. Greek political theory would suggest a democracy follows oligarchy (plutocracy is a form of oligarchy) but given the world today the answer does not seem very certain.
History will not be kind to the Roberts Court.
I’m increasingly coming to the conclusion that President Newsom must pack the court if we are to have any chance of our democracy surviving.
Still doesn’t address the reality that we probably won’t have fair or free elections and SCOTUS will pick up right where they left off in Bush v. Gore and officially end elections.
Is it that the Chief Justice doesn’t accept that the Court is losing credibility on a daily basis; that he thinks the Court doesn’t need that credibility in order to fulfill its intended role in our constitutional system; or that he doesn’t care?
Your statement reminds me of another you made in a podcast interview in Texas a few years ago where in you surmised that some justices become crankier (Scalia, for example) & more likely to express caustic opinions as their tenure extends to 2 decades or so.
This commentary is excellent and much needed as a tool for critical thinking about our SC. I cannot understand how our justices can justify their failure to explain the decisions they make on the shadow docket. Every litigant, rich or poor, popular or otherwise, deserves to know why his/ her/ their claim failed. And the lower court judges who work so hard to decide cases also deserve an explanation from the SC. Transparency does not exist in a court which issues orders without the sunlight of explanation.
Roberts and the other 5 believe that our country belongs to wealthy men. This nightmare is on them.
Steve,
Thank you proving a perspective and shedding light on the role of Chief Justice Roberts. From my citizen’s, non-lawyer perspective – or bias – he seems to me to be even more reprehensible in his pursuit of the upending of the Constitution and support of injustice than the more obvious single-minded advocates of the perverted doctrines of originalism and the unitary executive, notably Justices Alito and Thomas. I am not a mind reader but I do pose the question of whether Roberts is a tortured individual struggling honestly to reconcile conflicting impulses – like Saint Augustine, "Lord, make me chaste, but not yet!" – or is a person trying disingenuously to convince us that he is a genuinely “good guy” looking nobly and honorably for solutions that will keep the country and Constitution intact in the face of fundamental divisions on the Court and within the nation of what that requires. Two of the most appalling decisions – again from my own perspective – during his tenure are Heller in 2008 and Citizens United in 2010 (both 5-4 rulings with which he concurred, well before the Trump era. ). The Citizens United decision wa written by Justice Anthony Kennedy. Roberts concurred in that 5-4 ruling along with the then usual conservative (whatever that word means any more) suspects of Alito, Thomas, and Scalia, holding that corporate and union spending on independent political broadcasts are a form of protected free speech and cannot be limited. Citizens United has given free rein to the increasing reign of corruption that is permeating throughout US society, a consequence that should have been obvious at the time let alone today to anyone who knows anything about human nature, the exercise of power, and the influence of money. Heller was another 5-4 ruling that affirmed an individual right to possess firearms for self-defense, overturning a total handgun ban in Washington D.C., presumably ignoring the introductory (but now anti-originalist words) of the Second Amendment, “"A well regulated Militia, being necessary to the security of a free State,….” Are individuals acquiring very lethal weaponry required to prove that they are members in good standing of a “well regulated militia,” and, if so, do the Oath Keepers and Proud Boys qualify? Again, are Justices oblivious to the consequences of their decisions in the United States of the 21st century, which is no longer a frontier state, while weaponry today has no relationship in its lethality to the muskets and pistols that the Founders of our country were familiar with and used to defeat the British Empire. One might as well argue that since horses and carts are modes of transport and so are Airbus and Boeing jet planes, the latter should not be regulated differently from the former. Do not these examples prove that Roberts’ dark side (my bias again) has always been there, and is now being supercharged and able to manifest itself in full force and unrestrained in the Trump era?
My question is this: Have lawyers made the “law” impossible to understand for the lay person purposefully, or did it just happen by chance.? I am an old lady and will admit that my comprehension has slipped a bit but most of this is gibberish if one does not use a score card!
I know Prof. Vladeck is explicitly trying to make the Court and its issues more accessible in this column, but, well, law is complicated. Always has been. More accessible doesn't mean always accessible, plus it always depends on the specific legal questions being addressed.
Still, the main point here is merely that Chief Justice Roberts's rightward turn is both clearly happening as well as contradictory to his jurisprudence during his first 15 years on the bench. It's not clear if anyone aside from Roberts himself understands the reasons for it. He's pivoted from being an institutionalist – heavily prioritizing the Court's own stalwart standing – to actively allowing Trump to do much of what he wants, despite Congress having the power of the purse (under the Constitution) and him actively defying plainly *established* law.
Trump seems to think he can unilaterally "overrule" any given law. The horrifying part is that the Supreme Court is letting him do so, far more often than not.
I think Roberts will be known as the no. 1 worst chief justice rather than the 4th or 3rd longest serving. If he’d quit dying his hair like the sissy he is, we would know there is little chance he will make it to the second longest serving criminal of the supreme criminals.
Liberal constitutional scholar does not like a Conservative court and its decisions. Shocking.
Defender of the Court doesn't actually engage with the substance of criticisms against it. Shocking.
I was not defending the court. I was commenting on your consistent ideological driven interpretation of American jurisprudence. One doesn’t really have to read your articles because one already knows the endpoint. As Eric Segall commented- Liberal vibes good, conservative vibes bad.
I'll just point out two things:
First, most of my writing here is actually *not* about the Court's substantive jurisprudence, but rather its history and procedural behavior.
Second, if you actually *did* "read [my] articles," you not only might *know* that, but you might also deign to provide at least some analytical support for your otherwise unsubstantiated claim that my writing reflects an "ideological[ly?] driven interpretation of American jurisprudence."
I guess not thinking you have to explain yourself isn't limited to the Supreme Court these days.
Roberts, the Voting Rights Act hating Reaganite, was going to have a notable reign (a debatable term) but the Trump justices truly made his Court horrible. The voting rights stuff was bad anyhow though it took Kennedy leaving for them to seal the deal with partisan gerrymandering.
(I think that opinion -- though I oppose it -- could be defended on judicial restraint grounds but you can't have that case AND Shelby v. Holder & have that hold much water.)
One low point was Roberts ranting about how the same sex marriage opinion, which (like it or not) was a logical conclusion to the gay/lesbian cases (which fit into a wider series of cases) as somehow not constitutional law. He even felt it necessary to dissent from the bench.
The author of this Substack opposes court expansion. He fears it will taint the Court. Well, the Court is tainted with a strong Trump connection. Kennedy seems to be his buddy. Thomas and his wife are MAGA & Thomas is at this point illegitimate with all his ethical problems.
Each Trump nominee had a tainted nomination for one reason or the other. Trump v. U.S. was a clear jump the shark moment. This Court is tainted. Reform without addressing personnel is not enough. And, yeah, Dobbs was a travesty. And that was just ONE of them!
While I continue to cling to the faint hope that the chief justice has some sort of master plan here that will somehow explain his various rulings, it dims further by the day as the Roberts court keeps permitting EO after EO that flagrantly violate statutory law.
That being said, what I'm wondering now is where, specifically, Roberts is willing to draw at least one red line. (Other than the Lisa Cook case, where a ruling in Trump's favor remains unlikely. Maybe.) I know the Court likely won't hear anything in the Comey indictment case – and God help us if I'm mistaken – but it's at least possible and certainly stands as one of Trump's most brazenly warped attacks to date.
I'm assuming Chief Justice Roberts is fully aware of the damage being inflicted by the Court's rulings, and that he's knowingly risking his own legacy by enabling further lawlessness & tyranny. Particularly given the broad trend of Republican appointees from recent decades ending their terms on the Court following turns to the left on key issues (mainly Justices O'Connor, Souter & Kennedy), Roberts's own pivot in the opposite direction is more perplexing still.
At this point it's not clear whether Roberts has *any* red line, aside from Cook & Comey. And while I never expected the Court's 2025-2026 term to be even more stomach-churning (within the legal world) than post-election 2020, we may be at exactly that point. Has the line now vanished?