As in the case of the Roman
Empire, which internal corruption likely weakened and even
destroyed centuries after that empire had been a republic, modern republics are
also not immune from internal decay. Even though political corruption can go
under the radar, especially if systemic rather than merely episodic or around
particular office holders, the subtle, gradual impact can be just as destructive
than had Carthage defeated Rome’s general, Skippio Africanus, in north Africa. Making
subtle decadence all the more embarrassing is the fact that it can be right
under the noses of upstanding office-holders. I contend that this is the case with
Chief Justice John Roberts of the U.S. Supreme Court.
In his annual report in
December, 2024, Roberts “slammed what he described as ‘dangerous’ talk by some
officials [in the two other branches, or arms, of the U.S. Government] about
ignoring court rulings,” as that could result in a judiciary that is less than
independent of the legislative and executive branches and their respective members.[1]
Both Republicans and Democrats had “hinted at ignoring rulings in recent years.”[2]
To Roberts, that every presidential administration “suffers defeats in the
court system—sometimes in cases with major ramifications”[3]—is
the main reason why some presidents, including Andrew Jackson, have been
tempted to leave it to the high court to enforce its rulings rather than rely
on the executive branch. But this explanation ignores something else—something just
below Roberts’ nose.
Even as Roberts “lamented that
‘public officials’ . . . had ‘regrettably’ attempted to intimidate judges by ‘suggesting
political bias in the judge’s adverse rulings without a credible basis for such
allegations,” the chief justice dismissed the claim of political bias as “inappropriate.”[4]
I submit that the claim has sufficient basis to be taken seriously, and,
furthermore, that it goes beyond questions about the ethics of particular justices,
such as Thomas’ acceptance of vacations and Alito allowing his wife to fly a
right-wing flag at one of their houses.
Proverbially with a straight
face, the chief justice wrote in his 2024 year-end report that the role of the
judicial branch is “to say what the law is.”[5]
I submit that the justices do more than that. Just in the media referring to “the
conservative 6-3 majority” contains the implicit assumption that there are indeed
conservative and liberal justices and that such labels go beyond referring to
jurisprudential hermeneutics (i.e., approaches to interpreting the U.S. Constitution)
and even what opinions on what law itself is. Emphasizing what the words in the
document meant in 1787 versus what they mean today, or privileging the original
intent of the delegates at the U.S. Constitutional Convention versus interpreting
the text in terms of the modern world are just two examples of how the words
conservative and progressive (or liberal) could appropriately be applied
to court justices in a way that delimits the extent to which their ideology can
play a role.
I submit that when Justice
Sandra O’Conner wrote the U.S. Supreme Court’s majority opinion before the
oral arguments in Bush v. Gore—the ruling that effectively gave George
W. Bush the federal presidency—something more political than jurisprudential
hermeneutics being applied was in play. That O’Conner had been a Republican in
Arizona’s lower house from 1969-1974 may have something to do with why she subsequently
wrote the Bush v. Gore opinion for the conservative, Republican-nominated
majority before even oral arguments were heard.
Furthermore, that justices who
were against abortion constituted the majority opinion that overturned Roe
v. Wade (1973) may suggest that a non-juridical ideology played a role, and
thus that those justices went beyond merely deciding what the law is to stating
what it should be. That the justices who constituted the majority in the
Citizens United (2010) case were conservative, and thus likely
pro-business, may have meant that the nonjuridical economic ideology of free,
unencumbered markets even manifesting with money being free-speech was in play.
On the other ideological side,
it is likely that attitudes towards race played a role in the liberal majority’s
opinion in Brown v. Topeka Board of Education (1954) that separation is
not equal and thus racial segregation in public schools is unconstitutional. Similarly,
the finding of an implicit privacy right in the due process clause of
the U.S. Constitution in order to render abortion legal in the Roe v. Wade decision
may point to an extra-judicial ideology bearing on life and abortion, and even
religion, as being in the driver’s seat.
When moral, political, cultural,
or even religious ideologies or beliefs are salient in a judicial decision,
then the designation of conservative or liberal points to a
broader judgment both as concerning the justices themselves and their respective
rulings. If such broadly-informed judgment is really what the electorate in a
republic should bring to voting, then the implication is that public matters
requiring or even just fitting such broad judgment should not be decided by
unelected justices. I submit that such deference is precisely the point on
which Roberts and his court (as well as other, past courts, including that of
Warren) has lapsed. Individual judges and even an entire court can thus be seen
as opportunistic in short-circuiting the prerogative that actually belongs to
the popular sovereign: the people. This does not mean that the will of a
majority of an electorate should trample over individual rights, as a judiciary
is rightfully charged with protecting such rights precisely because a majority of
an electorate may act heedless of minorities, as can legislatures and even presidents;
but defending rights from majoritarian tyranny does not mean or require a judge
coloring beyond the jurisprudential lines on a page to impose one’s own
exogenous ideology, which anyone could do—hence the deference.
That the U.S. presidency,
which unfortunately has been partisan at the expense of the credibility needed
to preside, nominates U.S. Supreme Court justices and Republican or
Democratic U.S. Senators (and occasionally an Independent) confirm the nominees
means not only that politically conservative or liberal justices can be
expected to be sitting on the bench, but also, and perhaps more importantly— though
unfortunately almost invisible to the naked eye—the selection process itself is
culpable in essentially exporting political judgments from the American
electorates to the unelected justices. In short, Americans should not be
surprised at all that political ideology, infused with moral, economic, and
even religious valued beliefs, has such an impact in U.S. Supreme Court
decisions. The U.S. Constitution itself is biased in favor of this, and that
the amendment process is itself so hard to complete means that the vulnerability
to partisanship on the bench that is structural in the document is effectively intractable.
Being human, all too human,
all of us would love to imprint our respective ideologies on law, whether
statutory or common. So, we should all have the means to do so through the
vote. Essentially, I am arguing that popular sovereignty—government by the
people rather than vice versa—has unwittingly ceded too much territory to the
U.S. Supreme Court under the subterfuge of an expansive notion of judicial
interpretation. Ironically, there is thus a silver lining in this respect to the
anti-abortion justices imposing their moral or religious beliefs in overturning
Roe v. Wade because as a direct result, some state legislatures have voted
on legislation bearing on abortion and even the voters in some states have been
able to exercise their popular sovereignty by being able to vote directly on
the matter via referendi.[6]
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. That last word is the plural form of referendum; you can blame Latin, and ultimately the Romans whose empire fell at least in part due to corruption within. No human social artifact can be expected to last forever.
