Posted on July 13 2020
Chief Justice of the U.S. Supreme Court John Roberts has been in the news lately because of positions he has taken in three recent cases. When Roberts was nominated to the Supreme Court in 2005, Republican Party members embraced him for his conservative views. However, in these recent cases, Roberts has earned the approval of Democrats and others who share more liberal ideas.
This year, Chief Justice Roberts voted with liberal-leaning Supreme Court Justices to strike down an abortion law in Louisiana, to protect young immigrants who are living in the U.S. illegally, and to expand the rights of people who are gay and transgendered. As a result, according to a recent poll, 56 percent of Democratic voters view Roberts favorably, while for the Republicans, it is 47 percent.
When President George W. Bush first nominated John Roberts to the Supreme Court to replace retiring Justice Sandra Day O'Connor in July of 2005, Republican and Democratic opinion on Roberts was somewhat different than it is now.
There was no argument about Roberts’s qualifications for the post. A veteran attorney, John Roberts had by 2005 argued 39 cases before the Supreme Court. At the time of his nomination, he served on the U.S. Court of Appeals for the District of Columbia, an important and influential federal court. In his announcement of Roberts’s nomination, President Bush said that Roberts had "devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment, and personal decency."
However, Roberts’s nomination quickly polarized conservative and liberal political organizations. The conservative political group Progress for America held a rally in front of the Supreme Court building in Washington D.C. in which its members carried signs which read “Confirm!” At the same time, the liberal political group People for the American Way sent out hundreds of thousands of e-mails encouraging its supporters to oppose Roberts’s nomination.
Voters who were in favor of protecting abortion rights were especially concerned. In a case he argued as deputy solicitor general in 1990, Roberts questioned the case Roe v. Wade, the U.S. Supreme Court established the right of women to terminate a pregnancy without undue restrictive interference from the government. According to Roberts, the case "was wrongly decided and should be overruled.” When Roberts’s confirmation hearings began in September 2005—which were to replace the recently deceased Supreme Court Chief Justice William Rehnquist—Democratic Senator Dianne Feinstein made her concerns clear to the Supreme Court nominee: "One of the most important issues that needs to be addressed by you is the constitutional right to privacy," she told Roberts. "It would be very difficult for me to vote to confirm someone to the Supreme Court whom I knew would overturn Roe v. Wade.”
In his nomination hearing, Roberts emphasized that as Chief Justice, he would place the law of the land over his own views. "I come before this committee with no agenda, no platform. I will approach every case with an open mind," Roberts said. "My job is to call balls and strikes, not pitch or bat."
History shows that Supreme Court Justices have sometimes ruled in ways that disappointed their initial supporters. When Republican President Dwight D. Eisenhower appointed Chief Justice Earl Warren to the Supreme Court in the early 1950s, Eisenhower had hoped to change the nature of the Supreme Court.
Eisenhower was the first Republican president in 20 years. His two predecessors, the Democrats Franklin D. Roosevelt and Harry S. Truman, had appointed a total of 11 justices to the Court. Except for one, each of those justices were Democrats. Both Roosevelt and Truman were well known for their liberal political policies, as exemplified in their New Deal and Fair Deal plans, respectively. Eisenhower said his “principal concern is to do my part in helping restore the Court to the position of prestige that it used to hold, and which in my opinion was badly damaged during the New and Fair Deal days.”
With this stated goal, it seemed like Earl Warren was a sensible choice. A conservative thinker, Warren had, for example, been a vocal supporter of expelling Japanese Americans from California during World War II, even before President Franklin D. Roosevelt’s internment order was issued in 1942. California’s Japanese population, Warren argued, was in position to carry out “a tremendous program of sabotage.” When he was elected governor of California in 1942, Earl Warren signed bills to deny fishing licenses to Japanese Americans who were noncitizens and to take away some of their property.
Once on the Supreme Court, however, Earl Warren proved to be a supporter of minority rights. In addition, under Chief Justice Warren and Associate Justice William Brennan, the Supreme Court issued landmark rulings that included the constitutional right to privacy, the accused’s right to remain silent, and the elimination of official prayer in public schools. In Brown v. Board of Education of Topeka, the Supreme Court ruled that state laws that allowed segregation in public schools were unconstitutional. In the Court’s opinion, Chief Justice Warren wrote, “To separate [African American children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.”
Unsurprisingly, Eisenhower was once reported as saying that both Warren’s and Brennan’s nominations to the Supreme Court had been a poor decision. “I have made two mistakes,” the president reportedly said, “and they are both sitting on the Supreme Court. Later on, Earl Warren would confess to poor decision making of his own. In a letter published after his death in 1974, Warren wrote that he “deeply regretted” his support of Japanese-American removal during World War II.
Perhaps the nation’s Founders had situations like these in mind when they emphasized the idea of judicial independence. In the Federalist Papers, Alexander Hamilton said that of the three branches of government, the judiciary was “the least dangerous” because it lacked the military force of the executive branch or the financial power of the legislative branch. The judicial branch’s main power, Hamilton wrote, was “merely judgment.”
In order preserve the power of its judgment, the new government would need to take safeguards to make sure that justices could act independently of public opinion. Hamilton said that it was the duty of the judicial branch “to declare all acts contrary to the manifest tenor of the Constitution void.” In other words, the courts could act as a check on the legislature or executive branches if either exceeded its constitutional powers.
To ensure their independence, members the Supreme Court are nominated by the president and confirmed by the Senate. Once confirmed by the Senate, Supreme Court Justices may hold their positions for life. Because Supreme Court Justices do not have to run for election or re-election, it is hoped that they are able to make rulings free of political pressure.
Supreme Court Justices remain in office until they resign, die, or are impeached and convicted by Congress. To date, only one Supreme Court Justice has been impeached. In 1804, the U.S. House of Representatives voted to impeach Justice Samuel Chase, claiming that Chase acted in a partisan manner during several trials. However, in 1805 the Senate acquitted Chase. Many see that acquittal as further safeguarding the independence of the judiciary.
Many legal scholars say that preserving the ability of Supreme Court Justices, such as John Roberts, to make decisions without the influence of those who supported their nomination to the high court is a cornerstone of American Democracy. As Chief Justice William Rehnquist once put it, “The Constitution tries to insulate judges from the public pressures that may affect elected officials. The Constitution protects judicial independence not to benefit judges, but to promote the rule of law.”