Democrats Like John Roberts Because No One Told Them Not To
John Roberts may be a successful politician, but his opposition has done little to stop him.
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On Monday, Gallup released a poll which included a jarring finding: of 11 U.S. leaders across the political spectrum, only one has majority support amongst both Democrats and Republicans. That person is Chief Justice John Roberts.
Eric Levitz, writing in New York Magazine, offers a compelling justification for this somewhat surprising outcome. John Roberts, he writes, is an incredibly successful politician. Despite his objectively horrible voting record — on issues ranging from abortion, to labor rights, to voting rights — Roberts has somehow managed to convince the American public that he is nothing more than a nonpartisan, responsible steward of the law. In Levitz’s words:
No matter how events unfurl from here, Roberts has already established himself as the greatest Republican politician of his generation. No other conservative has managed to realize as many of the movement’s ideological goals at so little political cost. And if you don’t think that Roberts can be fairly described as a politician, well, that only confirms the enormity of his achievement.
There is certainly a lot of truth to this. Roberts, perhaps more than any justice, appears to go out of his way to signal to the public that he is un-swayed by the political winds. Indeed, he famously told the Senate during his confirmation hearing that judges should approach their jobs like umpires, whose job is to “to call balls and strikes, and not to pitch or bat.” And he has contorted himself at times— such as his strained reasoning to uphold the constitutionality of the Affordable Care Act without fully siding with the liberal justices — to avoid purely politicized results.
Still, any objective review of Roberts’ voting record will reveal that he is a staunchly conservative justice, and Roberts (like any Supreme Court justice) wields few tools, beyond his votes, to communicate to the public. So while Levitz is right that Roberts’ own massaging of his image has something to do with his widespread public support, there is something potentially more influential at play: no one has challenged him.
John Roberts actually ranks pretty low on the list of public actors who have the power to influence his image. Supreme Court justices very rarely communicate with the public, and when they do, it’s through their votes in major cases and their lengthy, complex legal opinions. But even then, the message is filtered through journalists, the legal academy and, most importantly, elected representatives, all of whom collectively have far more ability to influence the public’s perception of the courts and judges.
Across the board, however, those players have done little, if anything, to counter Roberts’ self-styled image as a nonpartisan, fair judge. In fact, in many instances they have done the exact opposite, indirectly going to bat for the Chief Justice by opposing critics of the Court.
Take, for example, the man at the top: President Biden. Throughout the 2020 campaign, progressive activists and journalists pushed hard for Democrats to get on board with various proposals to reform the courts, as part of an effort to counteract decades of right-wing capture of the judiciary. But instead of joining the growing list of Democratic politicians who favor court expansion, Biden kicked the can down the road, appointing a Commission to “study” the issue. The Commission, which was packed with conservatives, ultimately threw cold water on any significant court reform, all but ensuring that Democrats will not make it a central part of their messaging or policy platform.
The failures extend to rank-and-file Democrats as well. When Republicans egregiously rammed through Amy Coney Barrett days before the 2020 presidential election, Democrats did not initiate a sustained attack on the legitimacy of the Court or the brazenly corrupt nomination process. Instead, they actively legitimized the process, meeting with Barrett, cooperating with Republicans and coalescing around an extremely narrow messaging that focused solely on health care.
But it’s not just elected Democrats. The media establishment and the legal academy have also avoided any direct confrontation with the Court. Mainstream press continues to cover the Supreme Court as it has for decades, rarely, if ever, reckoning with the brazen tactics employed by the Republican Party to entrench an arch-conservative majority on the Court, and how it has affected the Court’s rulings. Several prominent legal academics on the left, including Noah Feldman and Benjamin Wittes, have gone so far as to defend the nominations of Brett Kavanaugh and Amy Coney Barrett. And of course, there is no greater defender of the modern Supreme Court than perhaps the most prominent liberal legal figure alive: Stephen Breyer.
Thus, while a portion of Democrats who are keyed into progressive politics are privy to the right’s corrupt project to capture the Supreme Court and determined to counteract it, the main signal delivered to the American public is far different. The conventional liberal — who is already hard wired to favor the rule of law and the authority of the judiciary— is fed not only an image of the Court that highlights its centrality and legitimacy, but also a barrage of warnings about confronting the right’s influence. The fact that this message is delivered virtually across the board — from prominent politicians, to legal academics, to revered journalists to liberal justices themselves — only enhances the effect.
So it’s no surprise that Roberts has been successful at convincing the public that he is a fair, nonpartisan actor. Counteracting that image would require explaining to the public why the Court is broken and why it is critical to fix it, but the political and media establishment is largely opposed to doing that. The result is that a large portion of Democratic voters simply have no basis to oppose Roberts, and instead view him as the unfortunate, albeit necessary and effective, bulwark of American rule of law.
If anything, this should be a massive wake-up call for the Democratic Party. The fact that an individual who is any many respects most responsible for the evisceration of large swaths of the progressive platform commands such respect amongst Democrats should be simply unacceptable to anyone who takes that platform seriously, and indicates an abject failure to direct the public’s attention to where it matters most. Progressives have begged the party leadership for years to take the courts more seriously — nothing should indicate the urgency more than widespread approval for the leader of the conservative legal movement.