Chief Justice Roberts has a problem

His court has turned into a plaything of the Republican Party

Imagine it’s last Sunday night and you’re putting your head down on your pillow and your name is John Roberts.  You’re not just any John Roberts, you’re the one who is Chief Justice of the Supreme Court.  Your week is looking like an interesting one.  In the morning, hearings will begin for the latest appointment to your court, Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia.  It’s the most prestigious appeals court in the land, a court that you had served on yourself.  As Chief Justice, you and Ketanji Jackson move in the same elite legal circles in Washington.  You attended the same elite university, Harvard, and you both studied law at Harvard Law School.  At least two of the Republican senators on the Judiciary Committee who will be questioning her also attended Harvard and Harvard Law, Ted Cruz of Texas and Tom Cotton of Arkansas.

By the time you put your head down on your pillow to go to sleep on Monday night, things are looking good.  Maybe the Republicans on the Judiciary Committee will behave themselves. Mitch McConnell, no less, has made noises that the confirmation for Judge Jackson won’t be filled with partisan rancor, and after a day of speeches by the senators on the Judiciary Committee, his prediction looks like it might hold up. 

But then comes Tuesday when the senatorial questioning begins, and the whole thing shows signs that it might descend into the same kind of partisan bickering that marred the appointments of the last two justices on your court, Brett Kavanaugh and Amy Comey Barrett.  By Wednesday night, your hopes that the latest nominee to the court you guard so jealously won’t be dragged through the political mud are over.  Not only has the hearing been filled with partisan rancor, it’s started to get nasty.  But still you hope.

On Wednesday morning you awake not only to another day of nastiness at the confirmation hearing for your next justice on the court, but the Washington Post has a front-page story on the wife of one of your sitting justices, Ginni Thomas, married to Clarence Thomas, and he’s in the story too.  It seems that Ginni Thomas, who has caused problems for the court before with her conservative political activism, was deeply involved in the effort to overturn the last presidential election and exchanged some 29 texts with Mark Meadows, a political appointee to his job as White House Chief of Staff and before that a well-known leader of the arch-conservative House Freedom Caucus.  The texts are stunning to read.  Ginni Thomas traded outlandish conspiracy theories with Meadows, including one that prominent Democrats were going to be locked up on barges off the coast of Guantanamo Bay in Cuba, and she repeatedly cited controversial conservative figures such as Sidney Powell and Rush Limbaugh and other right wing crazies. 

The hearings begin their third day and get worse.  Amazingly, the Ginni Thomas also story gets worse.  Now legal experts were talking about Justice Thomas’ dissenting vote in the case that went 8 to 1 against former President Trump allowing the release of his presidential papers by the National Archives.  Justice Thomas is being criticized for not having recused himself from the case in light of the revelations of his wife’s activities on behalf of former President Trump and his attempt to overthrow the election – a matter that was at issue in the papers case Thomas voted on. 

And then comes the Thursday hearing by the Judiciary Committee on Judge Jackson’s nomination and the Republicans just go completely off the rails.  One of the senators, John Cornyn, spends most of his time with the nominee indicating that he thinks the Obergefell decision was wrongly decided and should be overturned, so the decision on whether same sex couples can have the right to marry would be left up to the states.  But it didn’t stop there.  Senator Marsha Blackburn of Tennessee proceeded to take on the Griswold decision, a 57 year old case in which the Supreme Court found a right to privacy in the Constitution that allowed couples to practice contraception in their sex lives, the most intimate relations imaginable between human beings.  The Griswold decision was “Constitutionally unsound,” according to Senator Blackburn, indicating that she felt it should be overturned and the right to use contraception should be returned to control of the states. 

If that isn’t enough, Senator Mike Braun, in the middle of Thursday’s hearings, gave an interview to an Indiana radio station in which he was asked the question, “You would be okay with the Supreme Court leaving the question of interracial marriage to the states?”  Braun answered “yes,” and went on to explain, “If you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it, too.  That’s hypocritical.”  

The guy is talking about overturning Loving v. Virginia! It’s the 55 year old case that found a 14th Amendment protection of the rights of white and Black American citizens to marry each other, a 9 to 0 decision of the court that followed in the spirit of the civil rights laws of 1964 and 1965 and the 9 to 0 Brown v. Board of Education decision of the court against segregation in American schools. 

All the while, Republican senators on the Judiciary Committee are turning the questioning of Judge Jackson into an exercise in the kind of racism that was common in the United States Senate when Strom Thurmond and Jesse Helms strode its halls.

You’re the Chief Justice, and in less than four days, the very ground the Supreme Court sits on has shifted beneath your feet, and as you survey the political landscape of the country and the membership of your own court, you do not find a lot of help in tamping the ground back down to keep it in place.  In fact, one of the two major political parties, the Republican Party, seems to have become so radicalized that some of its most prominent members, including multiple senators and former President Trump and several sitting governors, appear to be headed in the direction of overturning more than a half-century’s jurisprudence on major political issues in the country, beginning with the decision on whether or not to overturn Roe v. Wade, which is on your desk as we speak.  

It is abundantly clear, as you put your head down on your pillow on Thursday night, that you have lost control of your court and its future and its reputation.  You have no sway over the five conservative justices beside yourself, all of whom, based on recent court decisions and the questioning that has taken place during hearings over the past year, are willing to ignore Supreme Court precedent and accept and decide cases challenging settled law as if they are pulling weeds rather than deciding cases that affect the lives of more than 300 million American citizens.

A conservative hold on the Supreme Court has turned into a stranglehold, choking the oxygen out of the lungs of the law.  What is the answer?  Is there an answer to be found?  What shoe will drop next?  What can be done to recover the Supreme Court’s legitimacy you are watching as it spins away down the drain?