But on cases affecting the core electoral interests of the two parties — like the decision impending this week on whether the Trump administration can add a citizenship question to the 2020 census — Roberts has conspicuously deviated from that pattern. He has repeatedly joined in 5-4 Supreme Court decisions that align all the Republican-appointed justices against all the Democratic-appointed ones on cases that set the underlying rules of political competition, from campaign finance to voting rights. And on those cases, critics say, he has consistently voted with the other GOP-appointed justices to produce rulings that benefit the Republican Party’s electoral interests.
“One thing Roberts has been consistent about is his willingness to take extreme stances to undermine long-standing rules of democracy,” says Michael Waldman, president of the Brennan Center for Justice at New York University, a group that advocates for expanded voting rights. “We all are impressed by his institutionalism and his deftness at steering the Supreme Court away from making it such a central partisan topic, such as in the ACA case. The democracy issues are where the court has been most aggressive, and he has not been a temporizing swing vote but an ardent activist.”
Richard Hasen, a law professor at the University of California at Irvine who specializes in election law, says that “historically … it has been mostly true” that Roberts has consistently voted to uphold the GOP’s core interests in cases that affect the rules of politics. But, Hasen says, “He’s in a different position now. He’s been the chief justice for a decade but only now is he a swing justice and only now is he on a court when all the conservatives are Republicans and all the liberals are Democrats.”
Roberts has spoken very little in public about specific court decisions, but in his appearance at the University of Minnesota last October, he suggested that the focus on 5-4 decisions that split the court along partisan lines was misplaced. The press, he said, portrays such decisions “more in a political way somebody must think is more readily understandable. From the court perspective, I would like to see the sentence that causes people to split this way (so) a reasonable person could see why there’s two sides to that story.”
Roberts also said he tries to ignore criticism of his decisions (“the good thing about life tenure is that it doesn’t really bother you much”) and doesn’t look back wondering whether he decided cases incorrectly. “I will give the same answer because it’s the true one, and I always worry it will sound harsh or something, but the answer is no,” he said.
A ruling of huge consequence
The nonpartisan Urban Institute recently noted that changes in how the census is administered — particularly an increased reliance on internet responses and reduced emphasis on home visits — could swell the undercount of minorities. Adding a citizenship question to those changes, especially in an atmosphere of intense political tension over immigration, could produce “an undercount of a magnitude we haven’t seen in a decade or two or more,” says Diana Elliott, a senior research associate at the institute.
That could undercount the population in heavily diverse states including California, Texas, New Mexico, Nevada, New York, Florida and Georgia while leading to overcounts in mostly white states including Vermont, West Virginia, Maine, New Hampshire and Montana, the group calculated.
Just as important, an undercount of minorities could shift the balance of political power within states. With less recorded population, heavily minority areas would lose representation when states draw new districts after 2020 for state legislative and congressional seats.
For all these reasons, experts such as Waldman believe the census case could rival the long-term impact of the other two landmark Roberts-era cases affecting the ground rules of politics: the 2010 Citizens United v. Federal Election Commission decision eviscerating campaign finance restrictions, and the Shelby County v. Holder decision, decided six years ago Tuesday, which severely retrenched the Voting Rights Act.
“The census case ranks up there with Citizens United and Shelby County in tilting the rules of American politics,” he says.
Both of those earlier landmark cases were decided on 5-4 votes, with Roberts voting with an all-Republican majority each time. At the time Citizens United was decided, the court’s partisan and ideological balance was less regimented than today. That decision featured Roberts and four other Republican-appointed justices outvoting three justices appointed by Democrats and John Paul Stevens, a Gerald Ford appointee, who often voted with the court’s liberal bloc.
By the time of the Shelby County decision in 2013, Elena Kagan, appointed by President Barack Obama, had replaced Stevens and the court had settled into its current ideological and partisan alignment, though with different members. On that decision, Roberts joined four other Republican appointees to outvote the four Democratic appointees.
Each of these rulings brought huge changes to American politics.
Citizens United, which defined political spending as speech, opened the door to a rapid expansion in “dark money” super PAC spending.
Shelby County had an even more seismic effect. That decision, written by Roberts, effectively invalidated the provisions of the 1965 Voting Rights Act that required states with histories of discrimination to receive federal approval (“preclearance”) for changes in their election laws. With that provision stripped away, Republican-controlled states across the country have stampeded to impose new restrictions on voting, such as limiting early and absentee voting and requiring more stringent proof of identity to cast a ballot.
Other 5-4 election decisions
Roberts has joined 5-4 court decisions that have produced outcomes mostly favored by Republicans on an array of other election-related topics. “If he’s got fears of seeming partisan, he’s managed to compartmentalize,” says Waldman. “He seems to always have a benefit for one party over another.”
So far, three federal district courts have decided against the Trump administration’s decision to add the citizenship question, ruling that the Commerce Department choice to include it violated federal procedures for reaching such a decision. Commerce Secretary Wilbur Ross initially said he sought to add the citizenship question at the request of the Justice Department — ostensibly to improve enforcement of the Voting Rights Act. But court testimony has shown that he asked the department to make that request, and consulted with anti-immigration hard-liners in the administration in his decision.
“In the census case it’s really hard to come up with a straight-faced argument in the face of evidence that while the Trump administration said they were doing this to protect Hispanic voters they were actually doing it to hurt Hispanic voters,” says Hasen. “If they are going to turn a blind eye to that … that’s a sign that this is a very partisan court. This should be a 9-0 decision (against the question).”
With the disclosure of the Hofeller memos, the court could punt on the decision and send it back to lower courts to consider the new evidence — though most observers consider that unlikely since the Trump administration has insisted it must prepare the census forms by this summer.
If the five GOP-appointed justices authorize a census question that dilutes the political clout of minorities, it would be only one of many decisions that could pit them against the interests of America’s growingly diverse population. Those same justices have displayed much skepticism about other programs, such as affirmative action in education or constraints on law enforcement’s use of race in decision-making, that most minority leaders consider essential to their communities.
Waldman says the census case illustrates how the five Republican-appointed justices could set rules for politics in the years ahead — on issues from redistricting to voting rights — that constrain the influence of the growing minority population, which mostly supports Democrats, and thus help Republicans retain power.
“What it means is the Supreme Court will have an even bigger thumb on the scale for the rules of politics, and it becomes a perpetual motion machine … changing the rules of politics to help elect more Republican officials, who appoint more Republican judges,” Waldman says.
Roberts has left no doubt that one of his greatest fears is that the court he leads will be perceived as nothing more than exactly that kind of cog in the Republican political machine. The explosive decision due this week will test whether that fear is enough to dissuade him from adding Department of Commerce v. New York to Citizens United and Shelby County in his legacy of landmark 5-4 party-line court rulings that have rewritten the rules of competition between Republicans and Democrats.