Should Chief Justice Roberts Resign?

July 1, 2020 Updated: July 1, 2020

Commentary

John Roberts’ tenure as the 17th chief justice of the U.S. Supreme Court has been tempestuous. He has been criticized, vilified, and denounced, and many times he has been urged to resign.

I haven’t seen a database that tabulates all those who have spoken against the chief justice, but the most noteworthy feature of the criticisms is that they have come from both conservatives and progressives, Republicans and Democrats.

On the left, critics include former 1st Circuit District Court Judge James Dannenberg, who has accused the Roberts Court of being the Trump administration’s “errand boy.” Dannenberg’s partisan fulminations include the charge that the Supreme Court under Roberts’ leadership “has become little more than a result-oriented extension of the right wing of the Republican Party.”

In case that wasn’t clear enough, Dannenberg continued, “The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males—and the corporations they control.”

On the right, the chairman of the American Conservative Union, Matt Schlapp, has railed against Roberts taking the progressive side in cases that upheld the constitutionality of Obamacare and kept a citizenship question off the 2020 census form.

An angry Schlapp proclaimed, “I’m for impeaching the Chief Justice for lying to all of us about his support of the Constitution. He’s responsible for Robertscare and now he is angling for vast numbers of illegal residents to help Dems hold Congress.”

The bipartisan scorn of Chief Justice Roberts extends to the U.S. Senate. There, five Democratic senators had adopted a strategy of intimidation, threatening, according to a brief, to restructure the Supreme Court “to reduce the influence of politics” (Republican politics perhaps?) if the Roberts court didn’t drop a Second Amendment case. (Note: The court indeed dropped the case.)

On the Republican side of the aisle, Sen. Josh Hawley (R-Mo.) reacted to the recent Bostock v. Clayton County—the decision to redefine “sex”—by saying that religious conservatives are discouraged by Roberts’ ruling. Sen. Hawley also called for a rethinking of President Donald Trump’s selection process for Supreme Court nominations.

Criticism of Roberts from the right is sure to become more intense after the June 29 announcement that he sided with the four progressive justices to negate a Louisiana law favored by pro-life Americans.

Irony and Tragedy

There’s great irony and great tragedy in Chief Justice Roberts’ erratic pattern of rulings.

The irony is that Roberts has proclaimed his belief that the Supreme Court should be seen as apolitical, yet his behavior has been overtly political. The more he tries to show that he’s apolitical by periodically abandoning his customary conservative principles to give progressives a victory, the more he politicizes the court. The more he tries to appease the left by taking their side in a case, the more political pressure he brings upon himself.

The left has learned that the more they accuse Roberts of (allegedly) turning the Supreme Court into an ideological or partisan tool for conservatives, the more Roberts will try to counter that perception by taking the progressive side in high-profile, politically charged cases.

Think about it: Do conservatives regularly badger progressive Associate Justices Breyer, Ginsburg, Sotomayor, and Kagan? No, because conservatives know that it would be a waste of time. They know that those four justices are a lost cause—that they will reliably and reflexively take the progressive side on cases with heavy political and ideological content.

And do progressives spend as much time attacking conservative Associate Justices Thomas and Alito as they do Roberts? No, because that, too, would be a waste of time; Thomas and Alito are conservative and won’t budge from their convictions. By contrast, Roberts, showing an almost desperate need to be seen as nonideological and nonpartisan by voting with the progressives on some ideologically charged cases, has shown himself unmistakably to be a political actor.

The irony continues: Roberts himself stated in remarks at the University of Minnesota Law School in 2018, when the Supreme Court has “erred,” “it has been because the court yielded to political pressure.” That comment serves as a spot-on self-indictment of Roberts’ conduct as chief justice.

The tragedy in Roberts’ modus operandi is that when he sides with the progressives, he makes himself look absurd, mutilates sound jurisprudence, and undermines the constitutional order of tripartite government.

The intellectual contortions that Roberts goes through to justify his progressive opinions are patently ridiculous.

He clearly is not willing to endorse the progressives’ reasoning. So, in order to side with them on a case, he concocts some truly incoherent, fantastical opinions—e.g., arbitrarily redefining the “fine” in the Affordable Care Act as a “tax,” or declaring that “a state exchange” does not mean a state exchange. Such confused and confusing usages are too illogical to serve as sound precedent for future cases, so they will have to be either ignored or repudiated.

Additionally, by using far-fetched verbal gymnastics to salvage poorly worded laws, Roberts will embolden Congress to continue to churn out more unclear, contradictory, or unconstitutional legislation.

In his most recent (as of this writing) progressive ruling—June Medical Services v. Russo, in which Roberts joined the progressives in a 5–4 decision striking down a Louisiana law restricting abortions—Roberts repudiated his own opinion from a very similar case in 2016.

Had Roberts changed his mind about the constitutional and legal issues? Not at all. He simply invoked the dubious doctrine of stare decisis, reasoning that he had to repudiate his own sense of what is constitutionally permissible because five other justices—whom he believed to be mistaken on the issue—had once formed a majority against his opinion.

For Roberts to practice such self-abasement and self-obliteration to further the progressive agenda is both tragic and pathetic.

Finally, by siding with the progressives to redefine “sex” in Bostock, Roberts usurped the prerogative of Congress to write laws. He apparently forgot that the Supreme Court is only the Supreme Court of jurisprudence, not of ontology. Such overreach by the unelected branch of government took a crucial decision from the hands of the people’s elected representatives, thereby doing violence to the republican principles of our constitutional polity.

Should John Roberts resign from the Supreme Court? I don’t feel qualified to say—especially because there’s no guarantee that a replacement would be better. All I can do is hope that he stops playing politics and quits trying to appease the implacable left.

Chief Justice Roberts should honor the highest ideals of the court by tuning out political considerations and simply upholding a coherent, logically consistent reading of our precious Constitution.

Mark Hendrickson, an economist, recently retired from the faculty of Grove City College, where he remains a fellow for economic and social policy at the Institute for Faith and Freedom.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.