John Roberts’ ‘eh’ view of extreme partisanship is important

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The funny thing about “secret” recordings made of public figures is that they generally confirm what everyone already knew.

The propriety of liberal activist Lauren Windsor pretending to be a religious conservative in order to surreptitiously record Supreme Court justices attending a dinner hosted by the Supreme Court Historical Society can certainly be debated.

The effectiveness of publishing these recordings is clear. Putting the word “secret” in a headline about a recording guarantees more people will read it.

The implication is that the subject is saying something they shouldn’t, even if they are actually saying exactly what you’d expect. For example: The secret recording of Mitt Romney talking at a fundraiser – about how the 47% of the population that would oppose him no matter what probably don’t pay income tax – contributed to his 2012 presidential election loss in part because the comments rang true to the narrative of the campaign.

Alito’s comments are no surprise

Did we need a secret recording to know that Justice Samuel Alito feels that religious Americans are being persecuted? We did not. It’s written all over his opinions and his public appearances.

Did we need a secret recording to know that Alito’s wife, Martha-Ann, would bristle at having to look at Pride flags flown across the lagoon from their New Jersey beach house? Probably not, after she was scrutinized for flying an upside-down American flag – a distress signal – at their home in Virginia before Joe Biden’s inauguration and a religious-themed “Appeal to Heaven” flag in New Jersey. Her German view of revenge against her detractors, which she explains in the recordings, is a new development.

CNN’s Joan Biskupic writes the following about Justice Alito: “Over the years, Alito has demonstrated an us-versus-them attitude on religion, as well as ideological and political matters. He has declared religion under siege and cast himself on the side of the persecuted.” Read more from Biskupic about how the Alito recordings will reinforce growing skepticism of the court and Alito’s objectivity.

Roberts said something interesting about the current state of politics

Chief Justice John Roberts, who was also recorded, similarly sounded just like his public persona – carefully choosing words and avoiding controversial statements, such as when he argued that his Jewish and Muslim friends do not view the US as a Christian nation.

Where Alito’s aggrieved view of his own persecution inflames partisan divides, Roberts argued, with examples, for a more optimistic view of the current political moment, which he said is not nearly as bad as previous eras in US history.

It’s a view that explains how Roberts may see the court’s role in the upcoming election, in which Biden says Donald Trump is a threat to democracy and in which Trump has promised to use victory as a path to retribution.

Here are some key quotes from the recording of Roberts:

This is indeed a broad historical view. The 1857 Dred Scott decision, which is a blot on the history of the court, ruled that slaves were not citizens of the US and not protected under the Constitution. It came a few years before the Civil War, which was fought over the issue of slavery.

During the New Deal, then-President Franklin D. Roosevelt essentially remade the US government to handle the Great Depression. He was frequently at odds with the Supreme Court and unsuccessfully tried to pack the court to make it more to his liking.

In the 1960s, the Civil Rights Movement and protest movement, along with a series of assassinations and the Vietnam War, tested the nation and the court.

Roberts has long felt that one key piece of legislation, the Voting Rights Act of 1965, which was enacted to protect Black votes in the South, was an improper use of federal power. As chief justice in 2013, he oversaw a key decision that whittled away at the power of the Voting Rights Act, allowing Republicans in Southern states to draw more and more noncompetitive congressional districts that solidify their majorities in those states. Last year, however, Biskupic noted that he seemed to change course and helped uphold part of the Voting Rights Act.

This is not the view of someone who sounds particularly concerned that American democracy is in danger.

Roberts has also been loath to entertain the concerns of lawmakers. He refused to meet with Democratic senators, for instance, about mounting concerns over gifts Justice Clarence Thomas accepted from a billionaire buddy and after reports of the partisan flag displays at Alito’s home. Democrats have also complained that Roberts has not done more to address the issue of partisan lawyers gaming how to get cases before judges they hope will be friendly.

Windsor asked if Roberts believes what’s happening right now is normal. His response:

And the Supreme Court has not acted as if anything special is going on. Justices refused to allow Colorado to remove Trump from its primary ballot in a case involving the “insurrectionist clause.” They denied special counsel Jack Smith’s request for an expedited review of Trump’s argument that, as a former president, he should enjoy some kind of super immunity from prosecution. Taking their time, the justices may effectively push Trump’s federal criminal trials past Election Day.

Windsor worries in the recording that polarization today is “so extreme that it might be irreparable.” In response, Roberts said this:

Note: Roberts did not serve in Vietnam, but he was a young man as American troops were withdrawing in 1973, a year before then-President Richard Nixon resigned as a result of the Watergate scandal.

By the end of the decade, Roberts was a young attorney bound for the Ronald Reagan administration. Today, he’s the chief justice exuding calm and acting aloof even as confidence in the branch of government he leads has fallen.

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