For Lack Of Public Confidence In The Supreme Court, John Roberts Has Only Himself To Blame

Shawn FleetwoodSeptember 14, 2022

U.S. Supreme Court Chief Justice John Roberts is back in the public spotlight and his latest remarks on judicial integrity are turning heads.

Appearing at the 10th Circuit Bench and Bar Conference in Colorado Springs, Colorado on Friday, the chief justice spoke about the perceived credibility of the Supreme Court among the American public and how disagreeing with its opinions “is not a basis for questioning [its] legitimacy.”

“The court has always decided controversial cases and decisions have always been subject to intense criticism, and that is entirely appropriate,” Roberts said. “But I don’t understand the connection between the opinions people disagree with and the legitimacy of the Supreme Court.”

Following the Supreme Court’s rulings on several hot-button issues this past session, such as the striking down of Roe v. Wade and upholding of Second Amendment rights, Democrats and their sycophants in legacy media have been quick to vilify the high court and call into question its ability to operate as an independent body simply because a majority of justices didn’t give them the outcomes they wanted. While it’s fair for Roberts to push back against such logic and distinguish the legitimacy of the high court from its judicial decisions, his next comments were impossible to take seriously.

“If the court doesn’t retain its legitimate function of interpreting the Constitution, I’m not sure who would take up that mantle,” the chief justice said. “You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is.”

For someone who holds the rank of chief justice, the lack of self-awareness from Roberts is stunning. Throughout his tenure on the Supreme Court, Roberts’s judicial decision-making on various high-profile cases has been guided by “public opinion.”

When the court was considering the constitutionality of Obamacare in the 2012 NFIB v. Sebelius case, for instance, Roberts reportedly took extensive actions behind the scenes to alter the Supreme Court’s final decision on the matter, even though Obamacare is obviously unconstitutional. After initially siding with his Republican-appointed colleagues in striking down the individual mandate of the Affordable Care Act (ACA) “on the grounds that it went beyond Congress’s power to regulate interstate commerce,” Roberts got cold feet over fears of potential public blowback over the high court’s impending decision and worked with his Democrat-appointed colleagues to change it.

As reported by SCOTUS biographer Joan Biskupic in her book, “The Chief,” Roberts’s bid to play politics led him to form a deal with leftist Justices Stephen Breyer and Elena Kagan that upheld and struck down certain portions of the ACA.

“After trying unsuccessfully to find a middle way with [Justice Anthony] Kennedy, who was ‘unusually firm’ and even ‘put off’ by the courtship, Roberts turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan,” a review of “The Chief” published in The Atlantic reads. “The threesome negotiated a compromise decision that upheld the ACA’s individual mandate under Congress’s taxing power, while striking down the Medicaid expansion.”

Biskupic’s reporting echoes findings released by CBS News’ Jan Crawford. She in 2012 reported that “Roberts pays attention to media coverage” and that “[a]s chief justice, he is keenly aware of his leadership role on the court” and “is sensitive to how the court is perceived by the public.”

In spite of his efforts to maintain the court’s favorability as measured by often-biased poll results, Roberts’s games in the NFIB v. Sebelius case did the exact opposite. As detailed in their bestselling book, “Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court,” Federalist Editor-in-Chief Mollie Hemingway and President of the Judicial Crisis Network Carrie Severino detail how “Pew [Research] reported that after the decision the Court remained at its all-time-low 52 percent approval.”

“The accepted narrative, even among those who welcomed the chief’s decision, was that he changed his legal position not on principle but in response to public pressure,” Hemingway and Severino write. “The right lost respect for him, and the decision won him no friends on the left, which still portrays him as unforgivably conservative and a craven political operative. It was a regrettable outcome for anyone concerned about the legitimacy of the Court.”

Roberts’s deference to the consistently changing and poll-manipulated opinions of the American public at the expense of upholding the Constitution didn’t stop at the Obamacare ruling, either. Over the years, Roberts has routinely abandoned originalism for political activism, with the court’s 2022 Dobbs v. Jackson Women’s Health Organization decision striking down Roe‘s made-up “constitutional right” to an abortion serving as a more recent example.

Despite Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all correctly maintaining that the precedent established in Roe was unconstitutional garbage, Roberts attempted — yet again — to play politician and convince one of his Republican-appointed colleagues to change his or her vote before the opinion was released. Originally reported by The Washington Post and later Biskupic, Roberts directed his lobbying to save Roe toward justices including Brett Kavanaugh, which “continued through the final weeks of the [2021-2022] session.”

“Multiple sources told CNN that Roberts’ overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades,” Biskupic writes. “Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority.”

The report went on to detail how the abrupt May leak of the Supreme Court’s majority draft opinion in Dobbs “thwarted” Roberts’ efforts, with Biskupic noting how the chief justice “can usually work in private, seeking and offering concessions, without anyone beyond the court knowing how he or other individual justices have voted or what they may be writing.”

In the final opinion, Roberts ultimately sided with the leftist justices of the court in upholding Roe, while also voting with his Republican-appointed colleagues to uphold the Mississippi 15-week abortion law as constitutional.

Whether he wants to admit it to himself or not, a decline in public confidence in the Supreme Court isn’t due to any originalist rulings, but to Roberts’s political activism. The role of a judge is — and always has been — to apply the Constitution as it was originally written by the Founders; not manipulate the law to satisfy some personal desire for public approval.

In abdicating his responsibility as a justice, Roberts has given the country every reason to be skeptical of the court’s ability to operate freely from the politics that plague America’s societal discourse. If the chief justice had any interest in ensuring the future of the Supreme Court’s legitimacy, he would quit acting like Mitch McConnell in a robe and start behaving like the judge he was appointed to be.

Shawn Fleetwood is a Staff Writer for The Federalist and a graduate of the University of Mary Washington. He also serves as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood