John Roberts Is Winning. The Rest of Us Are Losing.
BY DAHLIA LITHWICK AND MARK JOSEPH STERN
JULY 03, 2023 4:16 PM
As the Supreme Court term crashed to a close last week, in a string of stinging defeats to progressives, a familiar narrative began shaping up in the public discourse: The court had, on balance, remained largely loyal to the conservative legal project while delivering just enough compromises to quell any meaningful challenge to its power and legitimacy. That story is the one Chief Justice John Roberts would probably like to have you tell; it is both descriptively accurate and superficial to the point of distortion. The court did, indeed, refuse an invitation to clobber several liberal precedents and policies, which had the effect of leaving the law in place, a set of status quo decisions dressed up as liberal “wins.” It then used the resulting good press as cover to pulverize laws that directly improved the lives of tens of millions of Americans, including the most vulnerable and underprivileged among us. And it achieved these goals largely through the invisible hand of docket manipulation, a trick that’s unique to the modern Supreme Court.
What does that all mean? Nothing too lofty. Justices Brett Kavanaugh and Amy Coney Barrett have finally embraced the chief justice’s tried-and-true formula of years past, joining a series of decisions rebuffing some of the most radical Republicans’ most cynical efforts to yank the law far rightward. The sloppiest, least defensible big swings—pushed by Alabama, Texas, and North Carolina—were rebuffed. Slightly less sloppy big swings were embraced joyfully and written into law, including a case that had no facts and a case that ignored the record below. In swinging at only some of the worst pitches served up, Barrett, Kavanaugh, and the chief justice got a chance to tick off a bunch of policy agenda items that are too unpopular and misery-inducing to pass via the democratic process. After last term’s eruption of molten, cruel conservatism, the 6–3 majority has sought safer political ground without sacrificing any of its most cherished goals.
To see why this term was not some kind of triumph for moderation, consider the decisions that commentators have deemed huge victories for the left. Moore v. Harper simply rejected the independent-state-legislature doctrine, a fringe theory that was rendered toxic by its central role in Donald Trump’s failed coup; at the same time, the court awarded itself ongoing authority to rein in any state courts that it deems to have gone “too far” in protecting democracy, codifying a minority viewpoint into law. United States v. Texas merely put a new limit on the outrageous collusion between red states and a clutch of rogue Trump judges eager to seize control over immigration enforcement. Haaland v. Brackeen followed precedents reaching back two centuries in upholding Congress’ power to protect Native people; even then, it left the door open to future legal attacks on Indigenous rights. Allen v. Milligan affirmed an interpretation of the Voting Rights Act that has stood for nearly four decades and imposes moderate limits on racial gerrymanders. It was arguably the one clear-cut “liberal” victory of the term, and that’s only because the protection of voting rights has now become coded as an exclusively liberal concern. Even that “win” came only after the court left an illegal gerrymander in place for the 2022 midterms, and after years of attacks on Section 2 of the Voting Rights Act that left it much weaker than it used to be.
https://slate.com/news-and-politics/2023/07/supreme-court-john-roberts-winning-americans-losing.html
( Yep, he was never a moderate. )
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