Editor’s Note: Elizabeth Wydra is president of the Constitutional Accountability Center, a public interest law firm and think tank. The opinions expressed in this commentary are her own; view more opinion at CNN.
As the Supreme Court strives to finish its work by the end of June – deciding on issues from the future of the census to the ability of politicians to draw their own legislative districts – the justices labor in their chambers at a particularly fraught moment in our country’s history. The pressure may be greatest on Chief Justice John Roberts.
Try as he might – and some might question whether he is trying hard enough lately – Roberts is in danger of losing his battle to keep most Americans from seeing the court he leads as divorced from politics.
The latest Quinnipiac poll tells the tale, with nearly 60% of voters now seeing the justices as “too influenced by politics.” In fact, actions by President Donald Trump and his administration have made Roberts’ position more decisive than at any time in his nearly 15 years on the court. President Trump, it seems, views the Roberts court as his potential “get out of jail free” card, recently tweeting that if he were impeached under the Constitution he would look to the Supreme Court to bail him out.
Just this week, attempts to obstruct justice and invite foreign influence in America’s 2016 election – as detailed in more more than four hundred pages in the Mueller report – have come to a head: Attorney General William Barr, charged with defending the rule of law on behalf of all Americans, is instead running interference for President Trump, acting like a lawyer on Trump’s personal payroll.
In a dangerous insult to the constitutional duty of Congress to act as a check and balance against the President and the executive branch, the Trump administration is stonewalling Congress, forcing the House Judiciary Committee to vote to hold Barr in contempt. This extraordinary move is a likely precursor to a major court battle over Congress’s access to the full, unredacted Mueller report, on which Trump has asserted executive privilege.
All of this comes on the heels of the Trump administration placing children in cage-like enclosures. Blocking people from entering the country, as I have argued, because of their race or religion. Barring transgender people from serving in our military. Attacking the courts and impartial, fair law enforcement. Rigging the process by which the Constitution commands all persons in America be counted, and through which votes and government resources are apportioned and allocated.
These threats cannot be ignored or set aside – at least not without the American people paying a dear price. The strength of our people, and the institutions built to serve us, instead must confront these challenges, resolve them in favor of the rule of law, and reinforce the bedrock values of our amended Constitution: equality, inclusion, fairness.
Defining the Supreme Court’s place in this moment is the responsibility of Chief Justice John Roberts. “The majesty of the national authority,” as Alexander Hamilton wrote, “must be manifested through the medium of the courts of justice.” While it’s true that the Supreme Court is rated higher than President Trump or Congress, that’s a bar low enough to skip over. America’s founders set that bar much higher, and for decades the American people believed the court cleared it with ease. Not anymore.
While the President continues to not know how the Constitution works, he is unfortunately not necessarily wrong to look to the Roberts court for relief. It has been the place where some of his most outrageous policy actions have been resurrected.
At the end of last term, the conservative justices were willing to pretend that Trump’s Muslim travel and refugee ban wasn’t based on anti-Muslim animus, despite the President’s clear statements to the contrary. And now this term, it looks possible that the conservative justices who hold a majority on the court will pretend that the Trump administration’s addition of a citizenship question to the census is something other than an attempt to discourage and intimidate immigrants and people of color.
Given the fundamental challenges to our democracy currently confronting his court – with more on the horizon – the question is, what will Chief Justice Roberts do?
At this historic crossroads, his choice is straightforward. He can turn right – ignoring the majority of Americans who worry the court is too influenced by politics and the evidence that people are more likely to see the court as “too conservative” rather than “too liberal” – and plow ahead with the Republican legal project, giving Trump the rubber stamp he seems to want in the Supreme Court.
Or Roberts can look straight ahead, remembering his caution that, “The court has, from time to time, erred and erred greatly. But when it has, it has been because the court yielded to political pressure.” By heeding that caution, which points toward the Constitution’s text, history, and values, he can steer the Court away from the activist conservative extreme and back toward the middle of the road.
None but a few fringe observers of the court will ever mistake John Roberts for a moderate, much less a liberal. But as battles over the character of our democracy reach the court – many focusing on President Trump and his administration – the choice between exalting the rule of law and indulging conservative ideology, pushed by a demonstrably lawless President, should be a clear one.