Chief Justice Roberts and the Legitimacy of the Judiciary

President Donald Trump shakes hands with Chief Justice John Roberts before the State of the Union address, February 2020.

During the U.S. Senate impeachment trial of President Donald Trump, Chief Justice John G. Roberts made clear that he did not welcome his constitutionally mandated duty to oversee the proceedings, calling his role a “required residency” with “ill-defined responsibilities in an unfamiliar setting.” And indeed, apart from refusing to participate in Sen. Rand Paul’s (R-KY) attempts to expose a whistleblower, Roberts’ most notable act during the proceedings was to chastise both the White House counsel and House managers for their rhetoric.

Roberts’ clear distaste for the overtly political Senate impeachment trial is in line with recent statements he made in opposition to Trump’s repeated claims that federal judges are political actors. While far from an ideological moderate, Roberts has gained a reputation for wanting the court to at least appear apolitical as a sign of its legitimacy. Roberts has emphasized the importance of the judiciary as a coequal branch of government, stating that an “independent judiciary is something we should all be thankful for.”

But now that the chief justice is back to his day job full time, it will be difficult for him to escape partisan politics. As Trump’s attacks on the judiciary have dramatically increased post-impeachment—including smearing the federal judge overseeing the sentencing of his political ally and demanding that Justices Sonia Sotomayor and Ruth Bader Ginsburg be kept from hearing cases concerning his administration—the Roberts court is set to take up a number of contentious issues that directly speak to the need to keep politics out of the court. These cases, and the chief justice’s role in determining their outcomes, will not only strongly shape the legitimacy of the judiciary but also the corresponding strength of American democracy.

The judiciary and conservative activism

In the months to come, the Supreme Court will grapple with cases in which the lower courts have acted in ways that suggest clear political, or at least ideological, motivations.

Several major cases loom that could significantly affect the rights of LGBTQ individuals, women, and immigrants, among other groups. A set of cases concerning Title VII, for example, could determine if employers are allowed to fire someone because of their sexual orientation or gender identity. Another case will examine if the Trump administration’s decision to end Deferred Action for Childhood Arrivals (DACA)—a program protecting people who immigrated to America as young children from deportation—was lawful. While all of these cases represent attempts to use the courts to achieve conservative goals, one case in particular raises serious issues with regard to conservative judicial activism.

Almost one month to the day after the Senate voted on impeachment, Roberts’ court will hear oral arguments in June Medical Services v. Russo—a politically motivated attempt to overturn the 2016 case Whole Woman’s Health v. Hellerstedt, which recognized that targeted laws designed to eliminate access to abortion are unconstitutional. The case is on appeal from the 5th U.S. Circuit Court of Appeals, widely considered to be the country’s most conservative appeals court. The 5th Circuit acted extraordinarily not only by ruling against Supreme Court precedent when it decided the case, but also by breaking with the traditional role of an appellate court by conducting its own fact-finding in order to uphold the anti-choice law.

The civil rights cases before the court, including June Medical, are expected to be closely decided, which would continue a trend under Roberts of ideologically polarized court decisions. Under Roberts’ predecessor, Chief Justice William Rehnquist, the court issued 5-4 decisions when overturning precedent in fewer than one-third of cases. By comparison, when the Roberts court has overturned precedent, it has done so in sharply divided 5-4 decisions more than 70 percent of the time. If this trend continues, the public will increasingly view Supreme Court decisions as grounded in political considerations as opposed to legitimate jurisprudence.

It is also important to keep in mind the ramifications of cases that the justices may refuse to take up this year. Last year, the Trump administration began actively supporting a group of Republican-led states in their efforts to strike down the Affordable Care Act (ACA) in its entirety, employing legal arguments that even prominent conservative legal scholars have rejected as meritless. The 5th Circuit recently sided with the administration by ruling that the ACA should be overturned, although it punted the key question of total repeal back to the lower courts—likely delaying any political fallout from elimination of the law’s popular provisions until after the 2020 election. When Democrat-led states appealed this decision to the Supreme Court, Trump urged the court not to take the case and to allow the 5th Circuit’s delay to stand. The court has yet to decide if it will take the appeal this term.

The judiciary and government corruption

The Supreme Court is also poised to decide a series of cases that will define the ability of the legal system to check serious government corruption.

One case, Kelly v. United States, deals with the government’s ability to prosecute government officials for wrongdoing. The case concerns the infamous New Jersey “Bridgegate” scandal, in which then-Gov. Chris Christie’s (R) office shut down a major bridge to punish a Democratic mayor for not endorsing Christie for reelection. The Supreme Court has steadily made it harder and harder to hold public officials accountable; if Bridget Anne Kelly—a Christie aide who was charged with fraud for lying about the reason for the bridge shutdown—wins in the country’s highest court, prosecutors will have even fewer options to fight corruption. Given that the Senate just voted to whitewash President Trump’s criminality—despite a bipartisan majority of senators admitting that his actions were wrong—such a decision could flash a dangerous green light from the judiciary that elected officials can evade consequences for wrongdoing.

Perhaps most notably, the Roberts court also is set to rule directly on President Trump’s ability to escape oversight. In March, the Supreme Court will hear three cases in which appellate courts ruled that Trump must turn over his financial records in response to state and congressional subpoenas. Judge Neomi Rao of the D.C. Circuit Court, a former Trump administration official, dissented from her colleagues on this issue, detailing a theory of presidential power that experts have described as “whackadoodle.” Rao’s argument in favor of extremely limited legislative authority could potentially lead to a constitutional crisis by virtually eliminating congressional oversight of presidential misconduct and overturning a long line of Supreme Court precedent.

If the court issues a decision similar to Rao’s theory, it would effectively declare the president as above the law and more powerful than either the legislative or judicial branch. The ramifications of such a dismissal of checks and balances would be devastating.

Conclusion

In the coming months, the Supreme Court’s expected landmark rulings will define not only the rights of individuals across the country but also the role of the judiciary in American democracy. A ruling against women’s health in June Medical would overturn significant precedent and give a nod of approval for appellate courts to circumvent judicial standards to achieve ideologically motivated outcomes. A decision in Kelly making it harder to prosecute corruption by government officials would further restrict the ability of the legal system to address such wrongdoing. And if the Supreme Court were to side with an extreme, dangerous theory of presidential authority when it comes to Trump’s tax returns and financial records, it would further undermine the idea of the judiciary as a coequal branch of government.

During the impeachment trial, Roberts took a backseat as the Senate helped cover up Trump’s wrongdoing. But now, he presides over a Supreme Court with a docket of cases that will have far-ranging consequences for the country. Even as the most senior judge in the United States, Roberts cannot dictate any judge’s actions and votes except his own. But as the president continues to attack federal judges across the country, Roberts has the ability and duty to uphold the independence of the courts and ensure that they continue to play their needed role in government. This year will likely demonstrate how committed the chief justice actually is to maintaining that legitimacy.

Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress.