Despite Chief Justice John Roberts’ claims in 2006 that his goal for the Supreme Court was to converge around narrow, unanimous rulings, The New Republic’s Jeffrey Rosen writes that Citizen’s United v. FEC is, “the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.”

The Roberts Court is demonstrating the kind of conservative activism seen during the New Deal, which was met with political backlash by then-president Roosevelt. What could Roberts’ failure to deliver on his goal of judicial restraint mean for the Court? According to Rosen:

 “…contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well intentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.”

Maybe Chief Justice Roberts will take Rosen’s concerns to heart, but this is also a reminder as to why it’s important that we fight to confirm fair minded Justices who will stand up to defend core constitutional values.

Question: Can a police officer pull a driver over on suspicion of drunk driving based only on an anonymous tip? Based on the quotations below, can you guess what governmental body was asked this week to answer that question?

Every year, close to 13,000 people die in alcohol-related car crashes - roughly one death every 40 minutes. ... Ordinary citizens are well aware of the dangers posed by drunk driving, and they frequently report such conduct to the police. A number of States have adopted programs specifically designed to encourage such tips ...

[Another lawmaking body] adopted a rule that will undermine such efforts to get drunk drivers off the road. [It] commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road - by which time it may be too late.

There is no question that drunk driving is a serious and potentially deadly crime ... The imminence of the danger posed by drunk drivers exceeds that at issue in other [situations]. In a case [with an anonymous tip that someone at a bus stop is carrying a gun], the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. ...

The conflict is clear and the stakes are high. The effect of [needing more than an anonymous tip to permit the police to stop a driver] will be to grant drunk drivers "one free swerve" before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

Is this a legislator urging his colleagues how to vote on an important policy question?

No. It's Chief Umpire John Roberts, and he's not exactly neutrally calling balls and strikes.

On Tuesday, the Supreme Court denied a petition for certiorari in Virginia v. Harris, declining to hear the appeal of a drunk driving case involving a police stop based only on an anonymous tip. Roberts, joined by Justice Scalia, issued a stinging dissent from that decision not to hear the case. Their dissent was brimming with ... policy considerations.

This blog has written before on the pernicious myth that judges shouldn't affect policy, pointing out that that's exactly what courts are supposed to do. It's inherent in interpreting the law in difficult cases. Yet part of the Far Right's propaganda to demonize liberal judges and portray them as anti-American is the line that they "legislate from the bench," usurping policymaking powers from the people's elected representatives.

No one should be fooled into buying the Right's framing. Progressives shouldn't be bullied into parroting it. And the press needs to start asking why the Right always remains silent when conservative jurists engage in this perfectly normal, long-accepted practice.

The writing is on the wall. As any number of commentators have suggested, it’s pretty clear that no matter whom the President nominates for the next Supreme Court vacancy, the Republicans and their allies on the far right are going to fight. Indeed, as Jeff Toobin points out in his excellent article in The New Yorker, even the President’s mainstream nomination of David Hamilton for a seat on the Seventh Circuit Court of Appeals – his very first judicial nominee – continues to languish because of unfounded attacks from the Right. As one White House official is quoted by Toobin: ‘If they are going to stop David Hamilton, then who won’t they stop.” 

As suggested in Toobin’s article, the Republicans claim it’s payback for the President’s votes against Chief Justice Roberts and Justice Alito.  But as history is showing us, then-Senator Obama’s votes were the correct ones. The Roberts court is Exhibit A in far right judicial activism – not the balls and strikes umpiring we were promised by the Chief Justice.  In any event as Republican Senator Thune makes clear in yesterday’s Roll Call article, the only way for the President to avoid a fight is for him to nominate a conservative – anything else would meet significant resistance.

So the cards are on the table. If we’re going to have a fight, then let’s think boldly about the kind of Justice we need on the Court. And that means a Justice who understands that the law and the Constitution mandate protections for average Americans against the interests of the more powerful. It means a Justice who understands that the law and the Constitution protect important privacy rights. It means a Justice who appreciates that the law and the Constitution affect the realities of Americans’ everyday lives.  It means a Justice who respects the core constitutional values of justice and equal opportunity for all.  If we’re going to have a fight, let’s make it one worth having – let’s make it a fight for core constitutional values.

Jeffrey Rosen’s op ed piece in the New York Times over the weekend, The Trial of John Roberts, echoes a theme noted by a number of commentators, one on which I posted last week: that the Supreme Court’s decision to open up long-settled law with respect to regulating corporate expenditures in candidate elections in the recently argued Citizens United case is a quintessential exercise in judicial activism. And it’s the kind of judicial activism that then nominee John Roberts pretended to foreswear through his claims to be an umpire, simply calling balls and strikes.  

Where I part company from Rosen, however, is in his analysis that Chief Justice Roberts “deserves credit for trying” to forge a broader consensus on narrower grounds, citing, in particular, last term’s Voting Rights Act case.  The cynic in me says that the decision was 8-1 to uphold Section 5 of the Voting Rights Act and not 5-4 to overturn it, because the Chief Justice simply did not yet have the votes to do so. And Rosen’s reliance on greater unanimity on the Court with respect to upholding business interests – according to the Chamber 79% of these cases decided on margins of 7-2 better – is not, in my view, a reflection of Chief Justice Roberts’ forging consensus on narrow grounds. It’s a reflection of how conservative this Court really is, why the judicial philosophy of the next nominee to the Supreme Court really matters, and why it’s important to begin having that discussion now.

The Supreme Court is about to hear argument in a case, Citizens United v. Federal Election Commission, that should put an end to the myth advanced by Chief Justice Roberts at his confirmation hearing that he, as a Justice, is simply serving as an umpire, calling balls and strikes about what the law provides without any intention of influencing the direction of the law.  

After hearing oral argument last term, the Court postponed a decision in Citizens United, which involves the FEC’s attempt to treat an anti-Hillary Clinton movie as an impermissible “electioneering communication,” and ordered the parties to submit briefs that address the question of whether regulating corporate expenditures in candidate elections is constitutional. So instead of deciding the case in front of them, those who had been on the losing side in the past have reached out to redecide an issue that had been settled. 

Regardless of where you are on the merits of regulating express candidate advocacy by corporations – the issues of campaign finance regulation and the question currently being addressed by the Court are extraordinarily complex and weighty – it seems likely that those formerly in the minority, including Justice Roberts, seeing a change in the make-up of the Court (with Justice Alito replacing Justice O'Connor, who originally helped decide the quesiton), have seized a potential opportunity to re-make the law.  

So let’s be clear. Chief Justice Roberts isn't just calling balls and strikes: he's actually determining which pitches get thrown. 

Judges bring their own legal ideology to the table when they decide cases. It makes a difference whether the next nominee to the Supreme Court understands that the law and the Constitution mandate protections for average Americans against the interests of the more powerful. It makes a difference whether the next nominee to the Supreme Court understands that the law and the Constitution protect important privacy rights. It makes a difference that the next nominee appreciates that the law and the Constitution affect the realities of Americans’ everyday lives. It’s not just balls and strikes. Judicial philosophy matters.