Chief Justice Roberts, Stop Ducking And Do Your Job
Dec 3, 2020 by David Fowler
Chief Justice John Roberts has gotten on my last nerve. After violating his oath of office this summer to avoid controversy in a high-profile abortion case, he ducked out on another high-profile social issue type case last week. This one involved the Executive Order of New York Governor Cuomo that limited the number of persons who could attend religious services. It was nice to see two of his colleagues call him out, but now I will add my voice to theirs.
Violating His Oath of Office
Without dwelling too long on what Chief Justice Roberts did this past summer, you may recall that he voted in favor of a judgment preventing enforcement of a Louisiana law regarding abortion. The case was June Medical Services v. Gee.
He did so because the Louisiana law was almost identical to a Texas law that a majority on the Court held unconstitutional in 2016. That case was Whole Woman’s Health v. Hellerstedt. But the Chief Justice disagreed with the majority and said the Texas law did not violate the Constitution.
With that is background, I can’t believe what Roberts wrote this summer in Gee:
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case. (emphasis added).
Notice the words in bold font. Then note that he adhered to and applied a decision he still thought was wrong, effectively saying (my words):
I am not going to permit what I still believe the Constitution allows because it is more important that we keep doing what we did than it is for me to vote in a way that makes sure we get it right this time around.
He admitted that he was not doing what he thought the Constitution required. That, to me, is an admission that he was violating his oath to uphold the Constitution as the supreme law.
That made my blood boil. I wanted to scream, “Keep your oath and do your job or get off the Bench!”
From Violating His Oath to Ducking His Duty
While no breach of one’s oath can ever be un-breached, Roberts could have stepped up to the plate last week to join five of his colleagues to put on hold Governor Cuomo’s executive order. After all, it wasn’t like he was going to be the controversial deciding vote. Instead, he ducked again.
Here are the facts you need to know. The capacity limitation at issue kicks in when the governor determines a certain COVID threat level exists. The houses of worship were under that limit.
But, before the Court got ready to act, the governor changed the threat level so that the limit no longer applied. However, the governor still had the authority to reinstate the threat level and the limitation at any time thereafter.
Thus, what the majority of the justices did was keep the governor from applying the limit to the houses of worship if he later raised the threat level back up.
But Roberts apparently though preventing the governor from jerking the houses of worship around –under the limit, not under the limit, under the limit, etc.—was no reason to act. Here is what he said:
It is not necessary, however, for us to rule on that serious and difficult question at this time. The Governor might reinstate the restrictions. But he also might not. . . . If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications (emphasis added).
Here is what Justice Gorsuch said about Roberts wanting to wait to see if the Governor reinstated his order:
It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us . . . . So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty (emphasis added).
Then Justice Kavanaugh countered the Chief Justice as follows:
Federal courts . . . must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic. (citation omitted) But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.
Avoiding a “difficult question” while signaling to a religion-deprecating governor like Cuomo that he won’t act if the governor keeps changing his mind is an abdication by Roberts of his judicial duty. It emboldens other such governors and mayors to do the same.
It increasingly seems to me that the Chief Justice no longer has his eye on the Constitution but on politics and the public's perception of the Court.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.