Why I still think John Roberts is the worst Chief Justice since Roger Taney

And why I testified against him in 2005

On Monday, the Supreme Court gathered to consider whether affirmative action in college admissions nourishes a multicultural nation or impermissibly divides Americans by race.

I do not expect this Court to uphold affirmative action, notwithstanding the clear precedent for doing so.

Chief Justice John G. Roberts Jr. -- the conservative least likely to champion dramatic change in the court’s precedents -- has for his entire legal career opposed what he has called the “sordid business” of dividing Americans by race, including affirmative action

As Special Assistant to the Attorney General in the Reagan Justice Department, Roberts argued that affirmative action was bound to fail because it required the "recruiting of inadequately prepared candidates."

Roberts also complained to the Attorney General that the Department of Labor and its Office of Federal Contract Compliance were promoting "offensive preferences" based on race and gender, and questioned the executive order on which the Office of Contract Compliance was based.

He criticized a Supreme Court decision barring states from eliminating public education for children of undocumented immigrants.

And he supported a narrow "program specific" interpretation of Title IX of the Civil Rights Act of 1964.

Later, while in the White House, Roberts sought to slow progress on combating discrimination in housing, arguing that the administration should "go slowly" on proposed fair housing legislation, claiming that such legislation represented "government intrusion."

Compared to the Trump justices, Roberts seems almost judicious. But on the issue of affirmative action and on several other key issues he’s as bad if not worse than his rightwing siblings on the Court.

Since he became Chief on September 29, 2005, the Roberts Court has done more to reduce the voting rights of poor people and Black people while enlarging the voting rights of rich people and corporations than has any court since Roger Taney was Chief Justice in the early 19th century.

In 2010, Roberts was the moving force behind “Citizens United v. FEC,” (in which he concurred), finding that corporations are people, entitled to the same First Amendment rights — and thereby opening the floodgates to big money corrupting American politics.

In 2013, Roberts wrote for the court’s conservative majority in “Shelby County v. Holder,” gutting the Voting Rights Act’s requirement of prior federal approval for voting changes in states with a history of discrimination. Roberts ignored the detailed record to make his own finding that racial discrimination was no longer a problem in the United States — thereby opening the floodgates to voter-suppression laws across the South and other states with Republican-majority legislatures.

In addition to affirmative action, this term the Roberts court will put at risk the Voting Rights Act’s bar on the “denial or abridgement” of the right to vote on account of race in the upcoming case of “Merrill v. Milligan,” where Alabama asserts that race can’t be used as a factor to design fairer voting districts.

The Chief Justice of the Supreme Court is supposed to guard it as an institution — maintaining public confidence and trust in it. But Americans' confidence in the Court is now at a new low in Gallup's nearly 50-year trend. Only 25 percent of U.S. adults say they have "a great deal" or "quite a lot" of confidence in it — five percentage points lower than the previous low recorded in 2014.

Yet another reason why it is so important that Democrats keep control over the Senate.

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Here’s my testimony before the Senate Judiciary Committee in 2005, in which I opposed Roberts’ Senate confirmation.

Senate Judiciary Committee, September 15, 2005

Mr. Chairman and Members of the Committee,

Social or religious values have been given much emphasis in these proceedings. I want to suggest that economic values are also at stake. It may seem strange to talk about the economy in moral terms but that's only because we often don't recognize that moral choices are involved.

A central moral problem for the American economy today is that, although it has been growing at a good clip and corporate profits rising nicely, most American paychecks have been going nowhere.

These trends are not new. They began thirty years ago but are now reaching the point where they threaten the social fabric.

Not since the Gilded Age of the 1890s has this nation experienced anything like the inequality of income, wealth, and opportunity we are witnessing today. A central moral choice is whether America should seek to reverse this trend.

Those who view our society as a group of self-seeking individuals for whom government's major purpose is to protect their property and ensure their freedom of contract would probably say no. Those who view us as a national community of with responsibilities to promote the well-being of one another would likely say yes.

Is the well-being of our society the sum of our individual goods, or is there a common good that must be addressed? The answer will shape the American economy and society of the twenty-first century.

Over the next decades, the Supreme Court will play important role in helping us make this choice.

Under the guise of many doctrines and rationales the Court will favor either property or community, depending on the economic values of a majority of the Justices….

As inequality continues to widen, the Court's choice between property and community will have larger consequences.

Americans are segregating by income into cities and towns that are ever more uniformly rich, middle class, or poor. Hence, questions will be raised about equitable provision of public services.

Do our poor and working-class children have the right, under the Equal Protection Clause, to as good an education as the children of our wealthier citizens?

A future Court that says yes presumably would deem unconstitutional much of our present system of primary and secondary education, in which spending per child largely is based largely on local property taxes that vary enormously depending on whether the locale is rich or poor.

The wages and benefits of women and minorities continue to lag substantially behind those of white men in our society. And blacks and Latinos comprise a substantial portion of the nation's poor. As overall inequality widens, inequities based on gender, race and ethnicity are becoming more visible.

The link between poverty and race was never more evident than it was weeks ago in the hurricane-ravaged tragedy of New Orleans and its surrounds.

A future Supreme Court will almost certainly be faced with issues of equal protection for women and minorities in public safety, public health, employment, law enforcement, housing, and health care.

How it balances the values of property and community will affect the moral cohesion of the nation.

The same balance underlies how the Court decides whether rules and regulations are authorized by law. Many such laws reflect the nation's intent to protect people who cannot protect themselves on their own, and to establish minimally decent living standards for all… These laws represent America's moral conviction about how we should treat one another as members of the same society - thereby offsetting inequities in wealth and power.

And as such inequities have widened, each set of protections has become that much more critical. Each has and can be enlarged or whittled down by a Supreme Court, intent either on strengthening our national community or protecting property.

As Secretary of Labor, it was my job to implement the Family and Medical Leave Act. We came up with what I considered common-sense regulations that reflected the unequal power of employers and employees. Among them was a rule that even if an employer didn't tell employees they were eligible for it, eligible employees could take the 12 weeks of unpaid leave anyway.

In a 5-4 decision, the Supreme Court struck down that rule, saying it was inconsistent with the Act and, besides, it discouraged employers from providing more generous leave.

I've read the case several times, and I must say the logic escapes me. I don't believe it was a matter of pure logic. It was a matter of values, and in this instance, property won over community.

Antitrust laws also regulate the balance of economic power in our society, as do laws and rules affecting the financing of political campaigns. As wealth becomes more concentrated in fewer hands, both will become increasingly salient.

As America continues to merge with the global economy, immigration laws and constitutional claims involving the rights of immigrants, both documented and undocumented, will arise with greater frequency. Hence, Justices will be grappling with the very meaning of a national community.

The moral economic values of a single Justice can therefore affect the lives of millions of Americans.

One example is Justice Owen Roberts - no relation, I believe, to the current nominee - who in March of 1937 decided to join with four justices in upholding the minimum wage law of the state of Washington.

Up until then, Roberts had been on the other side - joining his four other brethren in striking down laws setting minimum wages and maximum hours, barring child labor, protecting workers from unsafe conditions, and establishing codes for worker standards in various industries.

They had defended their opinions in property terms: To them, due process was mostly about freedom to contract, liberty was a matter of accumulating personal wealth and doing whatever one wished with it, and the Commerce Clause sharply limited the reach of the federal government.

But after Roberts' switch, these justifications mostly vanished from Supreme Court majority opinions. It's commonly believed that Owen Roberts switched sides because of Franklin D. Roosevelt's threat to "pack" the Court by expanding its membership unless it upheld New Deal legislation. But in fact, Roberts' switch happened before any of the Justices knew of Roosevelt's plan.

The more likely explanation is that Justice Roberts switched because the realities of the Depression finally caught up with him. Community values were simply more compelling than property values. As the Court's new majority put it in the opinion Roberts joined:

"[T]he liberty safeguarded [in the Constitution] is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people.... The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community ... "

The challenge now facing America is different from what we faced in the 1930s, but the rapidly-widening inequalities of wealth, income, and opportunity confronting us pose no less a risk to the social fabric and moral integrity of the nation.

For all these reasons, the moral values John Roberts brings to bear on the economy are crucial for determining his fitness to be the next Chief Justice of the Supreme Court, as will be the economic values of nominees for other Supreme Court vacancies.

What are Roberts' economic values? … As Special Assistant to the Attorney General in the Reagan Justice Department, Roberts argued that affirmative action was bound to fail because it required the "recruiting of inadequately prepared candidates."

He also complained to the Attorney General that the Department of Labor and its Office of Federal Contract Compliance were promoting "offensive preferences" based on race and gender, and questioned the executive order on which the Office of Contract Compliance was based.

He criticized a Supreme Court decision barring states from eliminating public education for children of undocumented immigrants.

And he supported a narrow "program specific" interpretation of Title IX of the Civil Rights Act of 1964.

Later, while in the White House, Roberts sought to slow progress on combating discrimination in housing, arguing that the administration should "go slowly" on proposed fair housing legislation, claiming that such legislation represented "government intrusion."

He also indicated it was time to "reconsider the existence" of independent regulatory agencies, such as the FCC and the FTC, and instead place such power exclusively in the President's hands.

Viewed as a whole, the record suggests that Roberts is likely to place a higher value on property than on community, and is likely to view the Commerce Clause as hobbling the effective reach of the federal law and regulation.

As such, John Roberts may have more in common with his namesake before Justice Owen Roberts switched sides in 1937 than after that historic switch.