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John Roberts: Bemused Spectator of American Democracy

The chief justice's year-end report dwells heavily on the preservation of our civic life, without noting his hand in its undoing.

Jabin Botsford/Getty Images

Every December 31, Chief Justice John Roberts releases his annual year-end report on the federal courts. It’s a unique opportunity for him to speak not as a member of a nine-person court but as the de facto leader of the American judiciary. In 2017, he praised federal judges and court employees for responding with “extraordinary neighborliness, generosity, and dedication” to a surge in natural disasters. Last year, he discussed the federal courts’ response to abuse and misconduct by judges that became public during the #MeToo reckoning.

In 2019, Roberts’s thoughts dwelled on the American democratic project and its vitality. He opened his report with a discussion of the Federalist Papers, which serve as a Rosetta stone of sorts for American republicanism, and their illustrious authors. “Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution,” he wrote. “Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside.”

It’s not surprising that Roberts would express concern about his fellow Americans’ commitment to democratic values in the age of Donald Trump. His concern about civic education is well-founded: A C-SPAN poll last year found that half of Americans can’t name a single Supreme Court justice. (Only 14 percent could name Roberts.) But there’s a strong case to be made that it’s not just regular Americans who “take democracy for granted,” but also John Roberts himself.

The chief justice began his report by recounting how Alexander Hamilton and James Madison wrote most of the Federalist Papers during the ratification debates. John Jay, the first man to hold Roberts’s office, also made major contributions that were curtailed after he was injured in a New York City riot in 1788. That public revolt began after New Yorkers heard claims that medical students were robbing local graves to hone their surgical skills. “It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor,” Roberts wrote.

Political violence is a serious threat to democratic systems, but other perils to self-government can be more subtle than rock-throwing. Over the past decade, Republican-led states enacted a wave of measures aimed at making it harder for Americans to exercise their right to vote. These measures tend to disproportionately burden nonwhite voters, who tend to vote for Democratic candidates. In states with a history of voter suppression, a mechanism in the Voting Rights Act of 1965 known as “preclearance” once required state and local officials to obtain federal assent before changing their election laws. In the 2013 case Shelby County v. Holder, however, the court’s conservative majority struck down the formula drafted by Congress to determine which states fell under preclearance.

Roberts, who wrote the majority opinion, effectively second-guessed lawmakers’ judgment on the matter. “Our country has changed,” he asserted. The country quickly proved him wrong. Republican-led states—those once under preclearance and those that weren’t—began enacting a host of new barriers: strict voter-ID laws, sweeping voter-roll purges, and the closure of hundreds of polling places nationwide. The ruling may have tipped Georgia’s last gubernatorial election to a Republican secretary of state who championed restrictive measures and may have handed at least one battleground state to Donald Trump in 2016. It was one of the worst decisions handed down by the court in the last decade.

Under Roberts, the Supreme Court also foiled a decade-long effort to rein in partisan gerrymandering. Redrawing electoral maps for political benefits is as old as the republic itself. After the 2010 midterms, however, Republican state lawmakers across the country redrew state and congressional legislative maps in ways that sought to permanently entrench themselves in power, even if the electorate disagreed. Last year, the court’s conservative majority ruled that federal courts had no power to intervene in these cases, ending a decade of litigation that kept partisan gerrymandering in check. Roberts’s writings on the matter have already had an impact beyond these cases. Last year, the state of Mississippi cited his opinion in Gill v. Whitford, an earlier partisan gerrymandering case, to defend its racist electoral-vote rule from a lawsuit brought by voting-rights groups.

Democracy is more than just electoral mechanisms, of course. It’s also built on the public’s trust that elected leaders will work for the common good, and not merely for their own self-interest or the interests of those who can afford it. The Roberts Court has made it harder than ever to justify that trust. A series of rulings on campaign-finance laws, including Citizens United v. Federal Election Commission and McCutcheon v. FEC, allowed wealthy Americans to pour hundreds of millions of dollars into the nation’s electoral system. In return, they’ve received access, favors, and even ambassadorships. What’s more, the justices unanimously ruled in McDonnell v. United States that elected officials could set up meetings for donors who give them Rolexes and loans without running afoul of federal bribery statutes. The result is a slushy interchange of money and influence that favors the rich and well-connected while freezing out everyone else.

In his year-end report, Roberts describes at length the courts’ ongoing efforts to support civic education for Americans. The programs that he lists are laudable. Foremost among them is iCivics, a nonprofit organization founded by former Justice Sandra Day O’Connor and now championed by Justice Sonia Sotomayor. It seeks to educate young Americans through classroom exercises, online resources, and even video games. Other initiatives, like those led by the nonprofit National Constitution Center in Philadelphia and the National Center for State Courts, also sound worthwhile.

But the burden to preserve and revitalize American democracy does not rest solely on the next generation. It’s also the responsibility of Americans living today to ensure that self-government survives until those generations can take stewardship of it. That responsibility, though great, matters little when those in power actively work to thwart Americans from exercising their right to determine their own affairs. And it matters even less as long as John Roberts allows those who would undermine democracy to get away with it.