John Roberts and the insulation of the Supreme Court from backlash

John Roberts — with an assist in one crucial case from Anthony Kennedy — has been a remarkably adept political operator:

Earlier this month, Gallup gauged American sentiment toward 11 of the nation’s most prominent public figures. Only one boasted majority support from both Democrats and Republicans, and he happens to be the most effective conservative politician of the modern era.

During his tenure on the Supreme Court, Chief Justice John Roberts has voted to gut the Voting Rights Act, ban limitations on corporate political spending, effectively legalize most forms of political bribery, rewrite the Affordable Care Act in a manner that cost millions of Americans access to Medicaid, restrict the capacity of consumers and workers to sue corporations that abuse them, nullify state-level school-desegregation efforts, sanction partisan gerrymandering, and carve gaping loopholes into Roe v. Wade.

And Roberts nevertheless retains the approval of 55 percent of Democratic voters (along with 57 percent of Republican voters) in Gallup’s new poll. No other official in the survey — not Joe Biden, Kamala Harris, either party’s congressional leadership, Federal Reserve Chair Jerome Powell, or Dr. Anthony Fauci — claimed majority support in both blue and red America.

For progressives, this is a troubling finding, if not an entirely surprising one. The disconnect between the Roberts Court’s reactionary jurisprudence and its benign public image is long-standing. Thanks in part to a pair of high-salience 5-4 rulings that delivered victories for liberals — Roberts’s decision to preserve the bulk of the Affordable Care Act in 2012 and former justice Anthony Kennedy’s to honor same-sex couples’ right to marry in 2015 — Democrats actually expressed more approval than Republicans for the majority-conservative Supreme Court for much of last decade.

In a properly functioning democracy, RBG’s failure to retire strategically (while Kennedy did) and her replacement by Amy Coney Barrett would be a dog that caught the car event, as the Court is likely to get a lot less popular without Roberts as the median vote. The problem, as Levitz observes, is that we don’t have a functioning liberal democracy, and there’s no obvious way for Democrats to turn political backlash into material constraints on the Court’s power:

And yet even if public opinion turns against the Court, it’s not clear that progressives will be in a position to translate that backlash into meaningful reform. Overturning Roe may be unpopular. But so is expanding the Supreme Court. Amid the Amy Coney Barrett hearings in 2020, a New York Times/Siena College poll found that 58 percent of Americans opposed increasing the number of justices on the high court, while 31 percent supported it. It is difficult to see how the Court’s power could be meaningfully checked, at least in the medium term. To force Joe Manchin’s hand on Supreme Court reform, the backlash to the Roberts Court would need to extend far into red America. After the 2022 midterms, meanwhile, Republicans are likely to control at least one chamber of Congress. 

And, of course, one of the people most responsible for ensuring that Republicans are even more overrepresented than even America’s anachronistic constitutional structure would accomplish on its own is…John Roberts, with Shelby County and Rucho being two of the very worst decisions in the Court’s largely ignominious history. And not only will these decisions help to protect the Court from backlash, they will mean that abortion policy is well to the right of the median voter’s preferences in most swing states as soon as Republicans win a single gubernatorial election. It’s a nice racket!