Last week Chief Justice Roberts delivered a Law Day speech in which, according to the Washington Post, he complained that partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees. By players in the political process, Roberts does not mean that the Court’s decisions have no impact on the political process. Rather he means that the Court’s decisions are not made in the same fashion as legislators. Instead, he maintains that the Court often makes decisions that are contrary to their policy views. Though he did not say so, presumably his vote upholding the Affordable Care Act would be one such case. He surely would not have voted for the Act if he were in the legislature, but many things are within the power of the legislature, not just those that track the policy views of the Justices.
That said, if the Post report is to be credited, Roberts’ speech does not recognize that many, I would say most, constitutional decisions that arrive at the Court (and, for that matter, those that are litigated) hinge on policy judgments. To be sure, those policy judgments are considered along with considerations of language, history, precedent, and power (the Court’s institutional power may have been a key consideration in Roberts approach to the Affordable Care Act), but policy often is the dominant consideration influencing the interpretation or the weight given to the other factors. Think of affirmative action, abortion, whether members of a bargaining unit can be compelled financially to support a union, campaign finance, voting qualifications, compelled financial support for contraceptive insurance, business regulations, and rights of the accused. Is there any doubt that policy considerations (most of which divide conservative and liberals) have accounted for votes by the Justices in these and many other areas?
I don’t think there is room for doubt, and that makes Justice Roberts claim that justices are “referees” utterly inapt. Referees are impartial and, if they are not, they are corrupt. Justices cannot be impartial in the sense of referees. They are human beings, and their value system necessarily has an influence on the interpretation of the Constitution. Instead of supposing that Justices are referees, it is more accurate to suppose that Justices are players in the political process who are subject to certain customs and traditions that are different from, but overlap considerably with, those in the other political branches. The public perception of the Court should not be improved the kind of misleading characterizations advanced by the Chief Justice.