We Need Umpires

In his opening statement at the hearings before the United States Senate Judiciary Committee considering his nomination to be Chief Justice of the United States Supreme Court, John G. Roberts, Jr., said he viewed judges as “umpires.”

Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules but it is a limited role. Nobody ever went to a ball game to see the umpire.

What Roberts forget to say is that without the umpire there is no game. With no one to apply the rules chaos reigns.  Refusing to address the issue of partisan gerrymandering, Roberts and his four conservative cohorts on the US Supreme Court have deserted the field and left near anarchy.  

We should not be surprised by the decision in Rucho v.Common Cause. It is in keeping with the general approach of the Chief Justice who could be described as post-libertarian. Some pundits seem to feel Roberts is concerned primarily with protecting a centrist image of the court which would explain his decision to side with the liberal wing of the court in blocking a citizenship question on the 2020 census documents.

    

But consistently Roberts and his band of conservative brothers have issued decisions undercutting governmental initiatives that restrain special interests and reflect the popular will. Justice and truth appear to be of dubious value in their opinions.

Take the case of Lilly Ledbetter who received an anonymous note as she neared retirement from Goodyear Tire informing her that during her nineteen years with the firm she had been paid much less than her male counterparts. In a 2007 decision the Roberts Court denied her claim of sex discrimination because she had not file her complaint within 180 days of the first discriminatory act. The Obama administration convinced Congress to pass the Lilly Ledbetter Fair Pay Act in 2009 to prevent the rationale used by the Roberts Court being repeated, but it did not remedy the injustice done to Ledbetter.

Or consider the infamous Citizens United v. Federal Election Commission (2010) decision where in a lengthy opinion the Roberts Court ruled “No sufficient governmental interest justifies limits on the political speech of nonprofits or for-profit corporation.” It also invalidated existing laws prohibiting the use of corporate treasury funds for political advocacy. Such federal laws have been on the books since 1907.

It is noteworthy that in a concurrent opinion in Citizens United, the Chief Justice indicated his commitment to respect precedents did not run too deep. He described “stare decisis” as not an end in itself. Accordingly, Roberts wrote, “Its greatest purpose is to serve a constitutional ideal---the rule of law.” But he went on, “It follows…when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.”

In other words, the “rule of law” is what the current majority on the US Supreme Court says it is.

The gerrymandering decision, or rather non-decision, was a lame attempt to address legitimate grievances from two states, North Carolina and Maryland. Both were challenging their state’s congressional map; Democrats in North Carolina and Republicans in Maryland. An ideal situation for issuing a nonpartisan judicial decision.

But despite clear evidence that in both states, legislatures had manipulated the congressional districts for partisan advantage, the Roberts Court punted. The opinion authored by the Chief Justice declared “federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context.”

This is a bizarre statement given the fact there have been only three Democrats on North Carolina’s congressional delegations since 2014, but a near equal split in the overall congressional vote between the two major parties in each of the general elections since then.

Roberts adds to the weirdness when he asserts that earlier one-person, one-vote cases are not relevant:

           

            Vote dilution in the one-person, one-vote cases refers to the idea that each vote must

carry equal weight. That requirement does not extend to political parties; it does not mean that each party must be influential in proportion to the number of its supporters.

And how else does an individual vote carry any weight? We vote in virtually all cases for a candidate that represents a party. When his or her party is not fairly represented in the collective totals, the value of our vote has been diminished.

Legislative gerrymandering has a long history in US politics. Both major parties have resorted to gerrymandering, although in the past efforts were usually modest and generally practiced to protect individual office holders.

But modern polling tools and technology have changed the nature of the game.  It is now possible to collect and manipulate massive voting data that opens the door to highly precise partisan gerrymandering capable of perpetuate the ruling party indefinitely in every state.

Voters are going to have to demand fairness from our legislators and insist they abide by traditional democratic processes where voters choose their representative and not the other way around.  And we are not going to get any help from the Roberts Court.