Adelman also criticized President Trump, who he wrote ran as a populist but failed to deliver “policies beneficial to the general public. … While Trump’s temperament is that of an autocrat,” Adelman wrote, “he is disinclined to buck the wealthy individuals and corporations who control his party.”
The article by Adelman was all the more unusual because it went after the chief justice directly. Roberts, he said, was “misleading” in his 2005 confirmation hearing testimony when he pledged to be a passive “umpire” calling balls and strikes.
Adelman called that metaphor a “masterpiece of disingenuousness,” saying the court under Roberts “has been anything but passive” as its “hard right majority” has actively participated in “undermining American democracy.”
The article, entitled “The Roberts Court’s Assault on Democracy,” is scheduled for publication in an unspecified forthcoming issue of the Harvard Law & Policy Review, which describes itself as the official publication of the liberal American Constitution Society. It was published in full at SSRN this month.
Adelman, appointed to the bench by President Bill Clinton in 1997, is a former Democratic state senator in Wisconsin and Legal Aid Society trial lawyer. Perhaps his best-known decision nationally was a 2014 ruling striking down Wisconsin’s voter ID law.
His broad critique of the Roberts court, with particular reference to its decisions on voting rights and campaign finance by corporate interests, is not an uncommon one — coming, that is, from liberal scholars or political leaders, including former president Barack Obama.
But coming from a sitting federal judge in a journal article accompanied by such a blunt attack on Roberts, not to mention Trump, it has attracted uncommon attention.
“It has become en vogue for federal judges to criticize President Trump in such terms,” wrote conservative scholar Josh Blackman in the influential legal blog the Volokh Conspiracy. “But I don’t recall seeing a lower-court judge charge the Chief Justice with being ‘disingenuous’ or ‘misleading.’ … This screed could have come from a Bernie stump speech. It has no place in a publication by a federal judge.”
Writing in Slate, however, legal journalists Dahlia Lithwick and Mark Joseph Stern said it was “about time” for liberal judges to speak up, since conservative justices and judges have been doing so for several years, “penning screeds about the evils of ‘big government’ and rants against Planned Parenthood."
In a phone interview with The Washington Post Tuesday, Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”
He said he agreed his comments were “strong,” but defended them as “totally proper.” He was not attacking Trump or the court but rather “explaining what they’re doing. People can disagree with that explanation.”
Meanwhile, his article circulated on Twitter after links from Blackman and Slate and it was generating some heat.
Adelman’s article traced the transformation of the Supreme Court from what he described as a defender of ordinary people and “subordinated groups” to an enabler of an “anti-democratic” Republican agenda.
He cited several cases, most of them 5-4 decisions. Among them were Shelby County v. Holder, a 2013 Roberts opinion that loosened Voting Rights Act safeguards for minorities and Rucho v. Common Cause, in which the court, in a 2018 Roberts opinion, said partisan gerrymandering presents “political questions beyond the reach of the federal courts.”
He also cited Citizens United v. Federal Election Commission in 2010, which allowed unlimited corporate and union spending in federal elections and the 2018 decision in Janus v. AFSCME Council 31, which held that it was unconstitutional to allow public employee unions to require collective-bargaining fees from workers who choose not to join the union.
“Undoubtedly,” Adelman wrote, “large and influential sectors of the population have always opposed democratization and the extension of political rights. Yet one would hope that the Supreme Court would not be among them.
“ … Instead of doing what it can to ensure the maintenance of a robust democratic republic, the Court’s decisions ally it with the most anti-democratic currents in American politics,” he wrote, “forces that would be pleased if unlimited money could be spent on elections and if minorities could be deterred from voting.”
He went after Republicans in general as well, specifically their “ideological” and “uncompromising” approach to judicial appointments, as exemplified by the Republican-controlled Senate’s refusal to consider Obama’s 2016 nomination of Merrick Garland to the Supreme Court.
“The zealous partisanship the Republicans displayed,” he wrote, “reminds one of nothing so much as the ‘fireaters,’ those fervent defenders of slavery who pushed the South into the Civil War.”
The GOP “has been particularly afflicted by the concentration of wealth at the top,” Adelman wrote, its policy agenda “now dominated by a small and unrepresentative number of individuals and corporations.”
Adelman is widely respected in liberal circles in Wisconsin. Lots of judges write journal articles and Adelman has done his share. Among other topics, he has tackled mass incarceration, the Supreme Court’s handling of civil rights damages suits and money in Wisconsin politics.
Asked if the journal article might prompt some lawyer to seek his recusal in a case, Adelman said he didn’t see that happening. He said he had been a judge for two decades and “all the parties that have ever appeared before me think I’m fair.
“Maybe someone could make an argument [for recusal] in some high-profile case about the Trump administration,” he said. “But I don’t get any of those. They’re all brought in D.C. and California.”
The article, he said, was “about inequality and economic inequality” and the court. The references to Trump were for “context.” “I needed to say something about what’s going on now,” he said.