Time to Take the Kid Gloves Off With Supreme Court Reform

Counting on John Roberts to fix what’s wrong with the Supreme Court is a fool’s errand. This was true before the latest round of scandals involving Clarence Thomas, and it remains true in their aftermath. Roberts may be an “institutionalist,” as he is often labeled by mainstream legal commentators, but he appears to be just fine with the direction and management of the institution he leads. Far from being a potential savior of the court, Roberts is at the center of its many burgeoning problems.

On April 10, the eleven Democratic Senators who hold a slim majority on the upper chamber’s judiciary committee cosigned a respectful letter to Roberts, imploring him to open an investigation into Thomas’s failure to disclose a stunning array of gifts that he and his wife Ginni Thomas, the crackpot uber-right election denier, had received from Texas billionaire and Republican mega-donor Harlan Crow over the past twenty years. On April 20, they sent a second letter, inviting Roberts to testify on May 2 about the need for ethics reform on the court.

On April 25, Roberts rebuffed the solicitations, writing “I must respectfully decline your invitation. Testimony before the Senate Judiciary Committee by the chief justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

Roberts attached a six-page “Statement on Ethics Principles and Practices” to his letter, signed by all nine sitting justices. The statement asserted that the justices “consult a wide a wide variety of authorities to address specific ethical issues. They may turn to judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the Court and the federal judiciary. They may also seek advice from the Court’s Legal Office and from their colleagues.”

Roberts’s refusal to testify in May was not his first snub of the Senate Judiciary Committee. In 2012, he rejected its request that the Supreme Court officially adopt the federal code of conduct.

The ethics statement further claimed that the court “takes guidance from” the Judicial Code of Conduct for U.S. Judges, although it also correctly noted that the code “applies by its terms only to lower court federal judges.” The Supreme Court stands alone as the only federal judicial body not bound by an ethics code.

Roberts’s response was not his first snub of the Senate Judiciary Committee. In February 2012, he rejected the committee’s request that the court officially adopt the federal code of conduct. That request was triggered by Thomas’s failure to report his wife’s income from the Heritage Foundation, Hillside College, and other employers on his annual financial disclosure forms, as required by the Ethics in Government Act. After the watchdog group Common Cause publicly complained about the issue in January 2011, Thomas amended some thirteen-years’ worth of disclosures.

The embarrassing episode, however, had no discernible impact on Roberts. Without specifically referring to Thomas, Roberts praised his colleagues in his 2011 Year-End report on the Federal Judiciary as “jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process . . . We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.”

If the Senate Judiciary Committee is serious about reforming the Supreme Court and restoring the court’s image as a neutral arbiter of justice, it must take off the kid gloves.

In fact, Roberts has spent nearly his entire legal career as a highly partial rightwing operative, dating back to his stint as a clerk for the late Supreme Court Chief Justice William Rehnquist after he graduated from Harvard Law School. In 1981, Roberts took a job as special assistant to then-Attorney General William French Smith, becoming, in the words ofWashington Post columnist Ruth Marcus, a “loyal foot soldier in President Ronald Reagan’s legal revolution” aimed at rolling back the regulatory framework of the New Deal, and restricting the gains of the civil rights movement. In one particularly aggressive legal memo, he urged the Reagan Justice Department to support legislation to strip the Supreme Court of jurisdiction over abortion, busing, and school prayer cases. The proposal was deemed too radical even for the Reagan Administration, and failed to gain traction.

Other early stops in Roberts’s career included his service as an associate White House counsel from 1982 to 1986, and his work from 1989 to 1992 as principal deputy solicitor general in the administration of George H.W. Bush.

Roberts left the public sector after the election of Bill Clinton, but maintained his role as a Republican insider. According to investigative reporter Marc Caputo, Roberts operated as a behind-the-scenes GOP “consultant, lawsuit editor, and prep coach for arguments before the Supreme Court” in the run-up to Bush v. Gore, the case that decided the 2000 presidential election. Roberts was recruited to the Bush team by none other than Ted Cruz, then a young and very conservative Harvard-educated lawyer who had once also clerked for Rehnquist.

Since assuming the post of Chief Justice, Roberts has led the court on a rightwing trajectory, betraying the pledge he made at his 2005 confirmation hearing to serve in the fashion of a baseball umpire, “calling only balls and strikes, and not to pitch or bat.” Under his stewardship, the court has issued a blistering array of extremist rulings on voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion, campaign finance, and the use of dark money in politics. His 2013 majority opinion in Shelby County v. Holder, which gutted the Voting Rights Act, ranks among the worst.

Nor is Roberts above suspicion when it comes to potential personal conflicts of interest. His wife Jane Sullivan Roberts has a long history as an anti-abortion activist. She also reportedly made more than $10 million in commissions between 2007 to 2014 as a legal recruiter for blue-chip law firms, some of which had business before the Supreme Court.

If the Senate Judiciary Committee is serious about reforming the Supreme Court and restoring the court’s image as a neutral arbiter of justice, it must take off the kid gloves. Instead of weakly worded requests for Roberts’s cooperation, the committee should subpoena him to testify, and serve notice that its oversight of the court’s operations is just getting started.