Chief Justice John Roberts handed down his 2019 Year-End Report on the Federal Judiciary Tuesday evening, an annual tradition that sends Supreme Court reporters scrambling to read the document before they can disperse to New Year’s Eve parties.
The chief justice typically begins each report with a lengthy preamble. In some cases, the preamble crosses the line into subtle political commentary and even advocacy. The bulk of Roberts’s 2019 preamble is a call for “civic education.”
“We have come to take democracy for granted,” the chief writes, “and civic education has fallen by the wayside.”
Roberts, who flirted with becoming a historian before choosing law school instead, likes to begin his annual reports with historical anecdotes. His most recent report is no exception: He begins it with a story of how future Chief Justice John Jay was injured as he tried to quell a riot. The lesson of this story, according to Roberts, is that the Constitution’s “principles leave no place for mob violence,” and that the risk of mob rule grows in an era when “social media can instantly spread rumor and false information on a grand scale.”
Some commentators read Roberts’s warnings about democracy and mob rule as, in the New York Times’ Adam Liptak’s words, “addressed, at least in part, to the president himself.” Roberts is about to play a central, if largely ceremonial, role in President Trump’s impeachment trial, as the Constitution requires the chief justice to preside when the Senate tries a president.
“Even a casual reader could detect a timely subtext,” Liptak wrote, “one concerned with the foundational importance of the rule of law.” Liptak also points to a line in the report that praises Obama Supreme Court nominee Merrick Garland for volunteering “as a tutor at a local elementary school, inspiring his court colleagues to join in the effort” as an example of how judges can help foster civic education.
Yet, even if the chief did intend his report as a subtle dig on Trump, the prescription Roberts offers is rather mild. Civic education is a good thing, but it is no solution to problems like partisan gerrymandering or voter suppression — problems that Roberts has exacerbated in his judicial opinions.
How John Roberts thinks about democracy
A statement from the Chief Justice of the United States about not taking democracy for granted would normally seem like an anodyne exhortation. But coming from the author of Shelby County v. Holder (2013), the Court’s 5-4 decision striking down much of the Voting Rights Act, it might raise an eyebrow.
Consider that Roberts also wrote the Court’s decision holding that federal courts may do nothing to stop partisan gerrymandering. And that he decided that it is unconstitutional to prevent rich donors from buying access to elected officials. “Government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford,” Roberts wrote in McCutcheon v. FEC (2014).
Roberts, in other words, handed down a series of rulings that add up to a rejection of the idea that democracy depends on a legal framework that allows free and fair elections to exist. He’s spent much of his judicial career tearing down parts of that framework, even as he uses his annual report to warn against threats to democracy.
But before you dismiss Roberts’s annual message as an empty gesture that serves to distract from his actual record, it’s also worth engaging with the entirety of his thoughts on democracy. Things are actually more complicated than you might think.
Roberts’s most famous opinion may be the one he wrote in NFIB v. Sebelius (2012), which largely upheld the Affordable Care Act. The chief broke with his four Republican colleagues, each of whom voted to strike down the entire law. In the process, he laid out a fairly robust theory explaining why eliminating a health law hated by Republicans was not the proper role of the judiciary.
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
A few years later, Roberts concluded his opinion in King v. Burwell (2015), another decision rejecting a political lawsuit seeking to undercut Obamacare, with a similar warning: “In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined.”
The very next day, Roberts handed down a dissenting opinion that received far less love from the sort of people who support Obamacare: his dissent in Obergefell v. Hodges (2015), which argued that the Constitution does not protect a right to marry people of the same sex. But Roberts’s Obergefell opinion was as much a warning against conservative judicial overreach as it was an attack on marriage equality.
Roberts’s theory in Obergefell is, once again, that important policy decisions should be made by the legislature and not by the judiciary. “If I were a legislator,” he wrote, “I would certainly consider [same-sex marriage] as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”
What makes his Obergefell decision interesting is that he also rails against efforts to implement conservative economic policy through litigation. Much of Roberts’s opinion is an attack on Lochner v. New York (1905), an infamous decision from an age when the Supreme Court routinely struck down progressive labor legislation. A growing movement of legal conservatives hope to revive Lochner and similar decisions, but Roberts wants no part of this movement.
Lochner’s sin, Roberts wrote in his Obergefell dissent, was the Court’s decision to impose its “naked policy preferences” upon a nation that should be governed by elected lawmakers.
So, while Roberts’s actual voting rights decisions show little regard for voting rights, there is still a powerful thread of pro-democratic rhetoric woven into Roberts’s opinions. When he breaks with his Republican colleagues, he often does so on the grounds that those colleagues want to implement policy decisions that should be left to elected officials.
What Roberts gets wrong
That brings us back to the chief’s 2019 report. The theory behind that report is that democracy is suffering because the public lacks an adequate understanding of how our government functions. “In our age, when social media can instantly spread rumor and false information on a grand scale,” Roberts writes, “the public’s need to understand our government, and the protections it provides, is ever more vital.”
Roberts praises judicial efforts to close this knowledge gap, including a project by the Administrative Office of the Courts to produce “classroom-ready curriculum materials on teen-relevant topics,” and retired Justice Sandra Day O’Connor to help “found iCivics, a non-profit that engages students in meaningful civic learning through free teacher resources, including video gaming.”
The vision of democracy that emerges from Roberts’s writings, in other words, is less anti-democratic than it is blinkered. Roberts appears to view democracy as an individual burden, carried by citizens who must be properly informed (perhaps through campaign ads funded by wealthy donors), rather than as a system that can only be maintained through legal structures such as a campaign finance regime and laws protecting voting rights.
Liberals — and supporters of liberal democracy generally — are unlikely to find much comfort in Roberts’s vision. It matters little to a disenfranchised black voter if Roberts acted without malice when he struck down the Voting Rights Act.
There is a very real divide between Roberts and, say, the four conservative justices who dissented in NFIB. Roberts is unlikely to do much to protect free and fair elections directly — though he has shown some willingness to break with his Republican colleagues in extreme cases — but he has been significantly more willing to protect the power of lawmakers to actually make laws once those lawmakers are in office.
The problem for both small-d democrats and large-d Democrats, however, is that the ability to make laws means little if you cannot win elections because the Supreme Court has dismantled the country’s voting rights regime. Civic education is necessary to a functioning democracy, but it is not sufficient. Democracy also requires the kinds of structures and institutions that Roberts’s decisions have done so much to weaken.