Chief Justice John Roberts famously promised to be a modest caller of balls and strikes during his confirmation hearings two decades ago. In their occasional public appearances, Supreme Court justices always insist that the high court doesn’t do politics or policy but simply interprets the Constitution.
Yet on the rare occasions when we get a glimpse behind the court’s closed doors, the discussions over cases sometimes look much more like the grubby negotiations that take place in smoke-filled congressional rooms than high-minded, neutral applications of the law.
The latest peek around the velvet curtains comes from always-wired CNN Supreme Court reporter Joan Biskupic. Her latest scoops from the court’s just-completed term included the stunning inside story of the decision in Moyle v. United States, which preserved, at least temporarily, access to abortions in Idaho during emergency situations.
In January, the court allowed Idaho’s abortion ban to take effect, prior to a full hearing in April. Yet by the spring, Justices Brett Kavanaugh and Amy Coney Barrett, along with Roberts, had second thoughts — whether because of the intricacies of the case or because they wished to hit a pre-election pause button on additional abortion decisions that polls showed to be unpopular.
As Biskupic vividly narrates the story, the backroom dealings take on the form of a political thriller, complete with shifting alliances, hard-nosed negotiations and lingering bitterness from the jilted conservatives left behind as Roberts, Barrett and Kavanaugh flirted behind enemy lines.
It’s a compelling look at how the sausage is made within an institution that has long insisted it’s not making sausage at all, but is far above such things, a white-tablecloth, fine-dining establishment where such trimmings would never enter the kitchen. The reality, of course, is entirely different. The Supreme Court is hardly a court of law at all. It is best understood as a third political branch of government, but one that unlike the other two consists of just nine unelected people with lifetime appointments, no ethics code and zero accountability, who deliberate in private and explain little.
The justices would rather obscure this reality, which is why stories like these are so rare but so valuable. It’s reminiscent of an important Voting Rights Act case that preceded the infamous Shelby County ruling, setting up the end of the procedure known as "pre-clearance." In the 2009 Northwest Austin case, the court heard an audacious challenge to the VRA’s crucial enforcement mechanism that required states with the worst history of racial vote suppression to get any changes to election laws approved in advance by the Department of Justice or a federal court in Washington.
A tiny water district on the outskirts of Austin, Texas, bristled under this constraint and challenged the provision, since it represented a new neighborhood with no history of transgressions at all. The lower federal courts, however, reviewed the 2006 reauthorization of the VRA and found that the district was not eligible to be removed from pre-clearance, and that Congress had produced a voluminous report of nearly 16,000 pages explaining why pre-clearance remained proper and needed.
It’s difficult to understand exactly what version of the law the court applied in Northwest Austin. Judges often deny that they are robed politicians sitting on a bench, but the horse-trading here shows something closer to the reality. Roberts wrote a near-unanimous decision for a court that appeared deeply divided, based on oral arguments. The district was allowed to bail out of coverage. Pre=clearance survived for the time being, however, in an apparent win for the liberal justices. Roberts was hailed as a master of judicial statesmanship for reaching consensus.
Almost everyone also agrees that it wasn’t law.
“They made a deal,” said Edward Blum, an attorney who helped bring the water district’s challenge.
“It’s a compromise,” said Debo Adegbile, then an NAACP litigator who defended the VRA before the Court.
“It wasn’t exactly a principled constitutional decision,” said Judge David Tatel, who wrote the lower federal court’s decision that Roberts overturned.
But what no one noticed amid the horse-trading was that Roberts had laid a slow-motion trap. The liberal justices scarcely noticed what they signed onto. The chief justice wrote that “things had changed in the South,” and to make that implausible case cited statistics that could just as easily have been used to prove that pre-clearance was working.
For his masterstroke, however, Roberts created his own doctrine of “equal sovereignty” among states by equating it with the “equal footing” doctrine that governs the admission of new states, and then declared this new invention to be historic and fundamental. He did this by cutting and pasting from an earlier Voting Rights Act decision that reached the opposite conclusion, and used an ellipsis to edit out the part that ruled otherwise and turn the meaning of the precedent inside out.
Four years later, Roberts would draw on all this — ignoring, in the process, the thousands of pages that showed clear congressional intent to extend pre-clearance — to end it altogether in the 5-4 decision rendered in Shelby County v. Holder. A nearly unanimous vote in both houses of Congress had extended preclearance and the VRA just seven years earlier. Roberts laid the groundwork to gut the most successful civil rights legislation in American history all by himself, behind closed doors, accountable to no one at all.
Roberts entered office citing his modesty and adherence to institutional norms. He has acted instead with massive hubris and ambition, yet somehow the myth of the straight-shooting Midwestern umpire endures.
As Joe Biden and Senate Democrats have reintroduced important Supreme Court reforms, it’s important that stories like Biskupic’s and the saga of Northwest Austin are part of the conversation. This Supreme Court is not behaving like a court: Private horse-trading is no way to determine the law. Neither, of course, is packing a court with partisan ideologues. At the moment, we have a court where nine individuals with lifetime appointments weigh important issues behind closed doors. The public has no idea what is happening, let alone who is paying for the justices' family vacations, real estate, or tuition bills. That kind of power, and that level of secrecy, has no place in a democracy. Neither does a court that wishes to rule in permanent supremacy over the elected branches of government.
