John Roberts is now supreme court's swing vote – to conservatives' disdain
Shortly after the announcement that Chief Justice John Roberts had joined the supreme court liberals on Monday to strike down a Louisiana law restricting abortion rights, conservative legal organizations sent up an alarm.
Roberts, they warned, who also joined the liberal bloc this month in rulings that supported LGBTQ and immigration rights, had once and for all forfeited his conservative credentials.
“Justice Roberts, a so-called ‘conservative’, is clearly no longer running things – it’s now the Kagan court,” said Jessica Anderson, executive director of the conservative Heritage Action for America, referring to liberal justice Elena Kagan.
“The chief justice has repeatedly broken his promise to be a neutral ‘umpire’ and instead too often acts as a ‘politician in robes’,” said the Judicial Watch president, Tom Fitton.
“John Roberts ought to stop playing ‘87‐dimensional chess’ and just call the legal balls and strikes, as he promised to do at his confirmation hearings,” wrote Ilya Shapiro, director of constitutional studies at the conservative Cato Institute.
While the conservative faith in Roberts has been shaky ever since he prevented the court from gutting Barack Obama’s Affordable Care Act in 2015, the balance of his decisions this term may have destroyed that faith for good. Conservatives fear the George W Bush appointee has gone the way of former justice Sandra Day O’Connor, a Ronald Reagan appointee who ended up thwarting attempts to reverse Roe v Wade.
“If Justice Roberts wants to be a politician, he should resign and run for office,” Senator Tom Cotton, an Arkansas Republican, tweeted after a ruling this month to uphold protections for undocumented migrants who arrived in the US as children.
“Judging is not a game,” Ted Cruz, a Texas Republican, said in Senate remarks flagged by USA Today. “It’s not supposed to be a game. But sadly, over recent years more and more, Chief Justice Roberts has been playing games with the court to achieve the policy outcomes he desires.”
Before the court’s current term, Roberts had joined the four liberal justices in a 5-4 decision only five times, lawyer Adam Feldman, who runs the Empirical Scotus website, told Reuters.
In the most recent term, Roberts has been in the majority in all 11 cases in which the court was split 5-4, Feldman found, and in the majority in 52 of 53 total rulings.
“He is clearly the court’s pivot point,” Gillian Metzger, a Columbia Law School professor, told Reuters. “Put simply, it is truly the Roberts court now.”
Legal analysts warned that no one should mistake Roberts for a reborn progressive. The chief justice’s opinion in the Louisiana abortion case was “laden with hints that, in a future case, he is likely to vote to restrict – or even eliminate – the constitutional right to an abortion,” Ian Millhiser wrote at Vox.
In Citizens United v FEC (2010), the Roberts court opened political races to a flood of money from anonymous donors with narrow agendas and bottomless pockets. And in perhaps his most infamous ruling, Shelby County v Holder (2013), Roberts advanced the unaccountable notion that the US had beaten racial discrimination at the ballot box.
The Shelby County ruling released counties with histories of voter discrimination from federal oversight imposed by the 1965 Voting Rights Act. Writing on the eve of a new round of aggressive voter suppression efforts by Republicans, Roberts said that “nearly 50 years later, things have changed dramatically” and “the tests and devices that blocked ballot access have been forbidden nationwide for over 40 years”.
“Roberts seems to have a sense of history,” tweeted JoyceVance, former US attorney for the northern district of Alabama. “It will be called the Roberts court. But this term doesn’t signal an end to his conservative jurisprudence.”
But Roberts has proven sufficiently unpredictable to cause fretting in conservative legal circles, who were further nonplussed that Neil Gorsuch, a supposedly bulletproof conservative appointed by Donald Trump, joined with Roberts this month and wrote the ruling that affirmed anti-discrimination protections for LGBTQ people.
“Chief Justice Roberts and the four liberal members of the court have struck down a law and signaled to abortionists that not only are they exempt from the most basic medical standards and safety requirements, but that the abortion industry’s bottom line is more important than women’s health and safety,” the Heritage Foundation president, Kay C James, said after Monday’s ruling.
Roberts was credited with being an institutionalist after his ruling on healthcare, which was widely seen as an effort to protect the court itself. In defending the justice system, Roberts has gone so far as to rebuke Trump, bristling at his characterization of a judge who rejected his migrant asylum policy as an “Obama judge”.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in 2018. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
The chief justice’s mild demeanor still seems to mask a mystery. After the abortion ruling, the novelist Curtis Sittenfeld tweeted: “Does one of you want to write the novel about John Roberts’ innermost thoughts or should I?”
criticises the death penalty: “Thirty states still execute / thou shalt not kill”. The video by artist Arthur Jafa amplifies the interrogation of race and policing, with fleeting clips of Ahmaud Arbery and Breonna Taylor – the latter heartbreakingly happy and dancing – along with black people struggling to breathe.
Where might deliverance come from, other than God? In even a small and fleeting way, it could be on the dancefloor. “South side, let it bang”, he commands at the outset, presumably to the black community of his native Chicago: this is ultimately a club anthem, perhaps his most straightforwardly so since The Life of Pablo’s Chicago house track Fade. The top lines are techno-derived, pulsing at a high speed 4/4, but are offset against a breakbeat, while a steady hand-drum line keeps the tension sustained. This is absolutely masterful drum programming, and the bass tones are like blood pumping in your brain.
Jafa’s video meanwhile has people letting off fireworks and pulling dangerous donuts in sports cars, the intimation being that these heightened states can also be a vent for stress. It closes, though, on footage of Kanye’s Sunday Service choir practicing, and his daughter North West dancing in the purely expressive, embodied way that we forget (or resist) as adults. Become like little children – perhaps this is one route to salvation.
“They don’t want Kanye to be Kanye,” he says at one point – a selfregarding use of the third person, yes, though he obviously has form in this – and warns: “They want me to calm down … they tryna sign a calm Ye.” No one wants him to suffer another debilitating mental health episode, and his inability to calm his feelings and clearly articulate them has led to damaging overstatements in recent years, like saying slavery was a choice. As shown by his recent defence of voting for Donald Trump – essentially, because he can – he values freedom for freedom’s sake, and that do-anything impulse has led to some unfocused, middling material recently.
Wash Us in the Blood, though, has Kanye channelling his emancipated mind towards the sharpest point. He is at his most powerful when he doesn’t try to be calm, but corrals his anger. There’s a wider lesson there, perhaps, as the US faces its own moment of revelation.
waist and snatched my ankle from my hands.
“OK, listen to me,” he said. I’d never seen him look stern before. He squeezed my heel and a little stream of blood trickled from a tiny red dot under my foot. “Yep, that’s what I thought; you’ve stepped on a stonefish, man.”
Stonefish? No. Even the word seemed foreign, incomprehensible. Growing up in Australia, we’d been told that an intimate encounter with a stonefish means you have exactly 15 minutes in which to mainline some antivenom before what is known to be an excruciating and inevitable death. I had no idea why Zac wasn’t freaking out.
This has to be a mistake, thought.I’m not supposed to die yet!My body stopped fighting the news sooner than my mind – even in the water, I could feel myself sweating like an old cheese. My heart seemed to quit beating, in that same immediate way it does during one of the 500 or so times a year I think I’ve lost my wallet.
“This is going to start hurting like a bitch any minute,” Zac continued calmly. “Get your arse back to the camp, as fast as possible, and tell Jay what happened.”
I sat there, considering my two options: lay down in corpse pose and die
IWell, at least I’ll die doing something I love.
By the time I stumbled back up the cliff to Jay’s surf camp – a shipping container filled with boards, sunscreen and a crusty Mr Coffee – I was ready for amputation. I threw my board to the ground, having deliriously lugged it all the way back. One usually leaves one’s personal belongings behind in this kind of emergency, but I wasn’t exactly thinking straight, and I figured the last thing my family would need, griefstricken from my sudden death, was to hear they also owed 400 Bajan dollars for my lost rental board.
“Surf that bad, my lady?” Jay winked at the board, which was still rocking back and forth on the ground. “No need to go chucking the old steed around, oright? What’s wrong with you? Need a coffee? Ciggy?”
I was doubled over, panting hot air into my kneecaps. “Stonefish,” I gasped, dropping to all fours. And that’s when Jay manhandled me into a wheelchair and insisted on pouring boiling water all over my foot.
In what I assumed were my final moments, there was no grainy montage of beautiful memories. No hazy scenes of my dad lifting me on to a horse as a kid, or my mom placing a cool hand on my brow while I was home sick. I didn’t feel like I was on a high-speed Japanese bullet train, the smiling faces of my loved ones flicking by as I neared my final destination. Instead, I felt angry. I’d only just started my new life, in which I was going to be free of all of my bullshit, and it had already been cut unfairly short at the hands (er, spikes?) of the world’s ugliest fish.
I thrashed around dramatically for literal hours, teeth rattling, ugly crying, until Zac’s dad arrived with a pill that turned the clouds pink.I can’t believe these utter bozos didn’t tell me there were stonefish here, I kept thinking, over and over.
“You know,” Jay said, my wrinkly hand nestled in his leathery ones. “The good news about Caribbean stonefish is that, unlike those Aussie ones, they probably can’t kill yer … unless you’re, like, a baby or a very old fella. Are you either of those?”
With the kind of optimism bestowed only after a brush with death, a hallucinogenic painkiller, and the realization that I was “probably” never in any real danger, I saw that my tiny anemone of a life had been saved. I’d been given a much needed wake-up call, and I knew what I had to do next.
I made it to the airport 20 minutes before my flight took off. I shakily boarded the plane, hobbling down the aisle like I had a peg leg, and sat grinning at the ceiling. The hostess, wearing that limp yellow life jacket around her neck, peered down at me and asked, “How was your trip, doll?”
“Honestly?” I slurred. “Life-changing.”
When I got back to New York, I exited the business I’d only just started with my friend. I left him and our new roster of clients completely hanging. I knew I’d betrayed him. I’d brought him into my mess to help me stay afloat, only to leave him treading water. But I was certain there was more than clever taglines waiting for me on the other side. I didn’t know exactly what I wanted. But if I didn’t try to find out, I was sure I’d drown in that sea of “shoulds”.
Like a Band-Aid,I told myself. My mid-surf revelation, and all the immense pain and pleasure that came with the aftermath, had helped me see how far I still had to go before I could decouple the person I was from the things I did. Those narratives had always been woven so tightly together for me. I’d been splashed in the face with my own mortality in Barbados – given a chance to finally unravel the coil.
So I took a low-key, part-time job for a while. It was enough to pay the bills, and gave me a four-day weekend to fill with all of the thoughts and desires I’d never taken the time to explore. I painted and wrote and Googled pictures of stonefish. I thought about the insidious nature of those gnarled, prehistoric-looking venom traps: how freaky it is to think that they’re always there, perfectly still, camouflaged in the coral. Waiting for you to hit rock bottom. How sometimes the most unavoidable pain comes from the things that are hardest to see.
This story originally appeared on the digital storytelling platform Narratively. Looking for more great work? Here are some suggestions:
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