During his confirmation hearings in 2005, John Roberts made three promises to the American people. Less than a decade later, he's broken them all.
For starters, the future Chief Justice proclaimed his fidelity to precedent, a commitment he shattered so quickly that Senator Chuck Schumer (D-NY) lamented he and his colleagues had been "hoodwinked." More notoriously, Roberts offered the Senate Judiciary Committee a pious renunciation of so-called judicial activism, famously declaring, "Judges are like umpires. Umpires don't make the rules; they apply them." And with his gutting of the Voting Rights Act today, Chief Justice John Roberts despite his suggestions to the contrary in 2005 completed the work he began in the Reagan Justice Department over three decades ago.
Back in 1980, candidate Ronald Reagan attacked Sections 4 and 5 of the Voting Rights Act, claiming its pre-clearance provisions for jurisdictions with a history of discrimination were "humiliating to the South." But as Mother Jones documented, a young Justice Department lawyer named John Roberts advanced another argument in the Reagan administration's attempt to undo the VRA.
Roberts helped the administration hone its argument. He wrote that it made sense for parts of the VRA to require proof that discrimination was intentional. "Broad aspects of criminal law and tort law typically require proof of intent," Roberts wrote in a draft op-ed in 1981. Allowing the VRA to apply in cases of unintentional discrimination all over the country and not just those places with a history of disenfranchising minorities, Roberts insisted, "would raise grave constitutional questions." In the case of Mobile, the Justice Department's voting rights attorneys eventually did prove the discrimination was intentional--by heading to Alabama and poring over the historical record to establish the election law had been passed deliberately to disenfranchise blacks.
To Roberts, that demonstrated there was no problem with requiring the government to prove that discrimination was intentional. "John Roberts and others used that case to say anyone who wants to prove intent could do it," explains Gerry Hebert, an attorney now with the Campaign Legal Center who was part of the Justice Department team that went to Alabama. But proving intent "took enormous resources that only the Justice Department could have." More important, says Hebert, having to prove "intent" placed voting rights attorneys in a difficult position: "You basically have to get judges to call local or state officials racist."
But when nominee Roberts appeared before the Senate Judiciary Committee during his 2005 confirmation hearings, he brushed off his past positions as almost irrelevant to his future work on the Supreme Court. As the New York Times
But the most pointed back-and-forth was between Judge Roberts and Senator Edward M. Kennedy, Democrat of Massachusetts, who pressed the nominee on his commitment to the Voting Rights Act, which has been widely credited with enabling many black Americans to vote, especially in the South, and consequently increasing minority representation in government.
The senator recalled that, when the nominee was a Reagan administration lawyer in 1982, he wrote a memorandum embracing the administration's stance that sections of the Voting Rights Act should be enforced according to whether discrimination was intended, as opposed to whether discrimination was the effect...
Judge Roberts replied cautiously. In 1982, "I was still working for the administration, Senator," he told Mr. Kennedy.
If a voting-rights issue came before him today, "I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a particular position on that issue," he said.
But Chief Justice Roberts quickly dropped that façade. In a 6-3 opinion authored by Justice John Paul Stevens, the Roberts Court in April 2009 upheld an Indiana voter identification law
described this way by Appeals Court Judge Terrance Evans:
"Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic."
Then in the case of Northwest Austin Municipal Utility District v. Holder
that same year, Roberts tipped his hand. The Chief Justice gave every indication his views from his days as a foot soldier in the Reagan revolution were unchanged. "I mean, at some point," He said, "It begins to look like the idea is that this is going to go on forever." Robert also asked:
"Are Southerners more likely to discriminate than Northerners?"
If that sounds familiar, it should. Because during the oral argument for the Shelby County case decided today, Roberts asked almost the identical question
"Is it the government's submission that the citizens in the South are more racist than the citizens in the North?"
pointed out Tuesday, in 2006 President Bush and the overwhelming majority of Congress answered Roberts' question in the affirmative:
Though bipartisan majorities in the Congress and President George W. Bush agreed that this legislation was still needed -- and 81 percent of the voter discrimination complaints brought after the laws went into effect were in areas covered by the now eliminated pre-clearance jurisdictions -- Justices Alito, Kennedy, Roberts, Scalia, and Thomas have seriously defanged that power and opened the door to significantly more voter suppression.
To put it another way, the conservative majority on the Roberts' Court called a foul ball fair. Apparently, that's what Reagan staffer turned Chief Umpire John Roberts meant to do all along.