Republicans are mad as hell at Chief Justice John Roberts because he kept his sworn commitment to follow settled law. Roberts refused to void ObamaCare, preserved Deferred Action for Childhood Arrivals (DACA), protected Roe v. Wade and reaffirmed LGBTQ rights.
His critics on the right should calm down: Roberts could be saving the Supreme Court’s conservative majority.
GOP outrage is palpable. Resorting to a violent metaphor, as is his wont, President Trump conjured up Dick Cheney, likening Roberts’s decisions to “shotgun blasts into the face of people that are proud to call themselves Republicans or conservatives.”
Sen. Tom Cotton (R-Ark.) accused Roberts of undermining the institutional integrity of the Court, while Louisiana Sen. John Kennedy (R), apparently without irony, denigrated himself, complaining Roberts demonstrated that justices are “nothing but politicians in robes.”
Perceptions of institutional integrity already lie at low ebb. President Trump’s approval rating has fallen below 41 percent, while Congress, as an institution, clocks in at a measly 24 percent.
YouGov found approval of the Supreme Court at 42 percent, prior to rendering the DACA and LGBTQ decisions. Immediately after those decisions, approval of the Court increased to 48 percent.
While the Supreme Court is necessarily a political institution, it had once been seen as a repository of nonpartisan justice.
Mitch McConnell helped destroy that.
Not long ago, Merrick Garland was recommended for the high court by Republican senator and one-time Judiciary Committee Chairman Orrin Hatch as a “consensus nominee,” whose moderate record could overcome the partisan divisions that increasingly seemed to engulf Supreme Court nominations. Hatch even offered to round up votes for Garland.
Despite that conservative endorsement, when President Obama nominated Garland to fill the seat of deceased Justice Antonin Scalia, GOP Senate Majority Leader Mitch McConnell (R-Ky.) defied the Constitution, elevating partisanship over principle and power above precedent, and denied Garland even a hearing, let alone a vote.
McConnell claimed the Senate didn’t confirm Supreme Court nominees in a presidential election year. Prefiguring Donald Trump, McConnell simply lied.
Surveying history, professors Robin Bradley Kar and Jason Mazzone found McConnell fabricated his argument.
In all eight cases where the nomination process began during a presidential election year, the Senate acted on the nominees.
Last year, McConnell confirmed his prevarication after being asked whether he’d fill a potential 2020 Supreme Court vacancy. “Oh, we’d fill it,” he replied, winking.
Violating fundamental principles in favor of exercising raw power and admitting your own hypocrisy, as McConnell did, often elicits tit-for-tat responses (which experiments demonstrate is the wisest strategy for preventing future departures from normative behavior).
So, were I a Senate Democrat, I might be noting that the Constitution doesn’t fix the number of Supreme Court justices. I’d consult history to find Congress has changed the number of justices six times. And, if Joe Biden wins, I’d seriously contemplate increasing the number of justices.
Which bring us back to Roberts’s recent decisions.
Only 28 percent of Americans and a minority of Congress want to overturn Roe v. Wade; 67 percent of voters and a majority of both Houses support keeping it in place.
YouGov found just 32 percent of Americans want ObamaCare repealed, a view shared by a minority of Congress.
A mere 12 percent of the public want Dreamers deported, according to Morning Consult.
Some 90 percent oppose discrimination against LGBTQ individuals, per Kaiser.
So, imagine the result if, instead of Chief Justice Roberts, another mindless Trump clone were on the bench, and the Court had moved toward deporting Dreamers, overturning Roe, allowing discrimination against LGBTQ people, and repealing ObamaCare?
The incensed demand for reforming the Court would be irresistible.
McConnell’s constitutional defiance may have already set the course for change. But, by refusing to inflame passions further, Justice Roberts may stem the tide and accomplish the coveted goal of his GOP critics — preserving the Court’s current conservative majority.
Mellman is president of The Mellman Group and has helped elect 30 U.S. Senators, 12 governors and dozens of House members. Mellman served as pollster to Senate Democratic leaders for over 20 years, as president of the American Association of Political Consultants, and is president of Democratic Majority for Israel.