BOSTON — Chief Justice John G. Roberts Jr. said late Wednesday 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.
Divisive battles over confirmations and mischaracterization of the merits of the court’s decisions worry him, Roberts told a ballroom crowd of about 1,000 people at a celebration of Law Day at New England Law-Boston, a private law school.
Criticism of the court “doesn’t bother me at all,” Roberts said, as long as it is not based on a misunderstanding of how the court differs from the political branches.
“It’s usually discussed as, ‘Oh, you’re in favor of this or you’re in favor of that,’ ” Roberts said in response to questions from the law school’s dean, John F. O’Brien.
“In fact, our ruling is that whoever does get to decide this or that is allowed to do it, and that it’s not unconstitutional, that it’s consistent with the law,” Roberts said. “But we often have no policy views on the matter at all, and that’s an important distinction.”
The court is under heavy criticism from all sides in the presidential campaigns, with Republican Donald Trump suggesting he would appoint justices who would overturn the court’s 5-to-4 decision saying gay couples have a constitutional right to marry and Democrats Hillary Clinton and Bernie Sanders making a rejection of the court’s Citizen United campaign finance decision a litmus test for their potential nominees.
And before the justices adjourn in June, the court will decide cases involving a host of issues at the heart of the political debate: affirmative action in university admissions, abortion restrictions, the ability of religious objectors to opt out of the Affordable Care Act’s contraceptive coverage obligation, and President Obama’s plan to shield millions of illegal immigrants from deportation.
Roberts himself — once touted by Republicans as a prototypical Supreme Court nominee — has become a focus on the right. GOP presidential candidate Ted Cruz, a senator from Texas, said Roberts’s nomination was a mistake, and even former Florida governor Jeb Bush, whose brother chose Roberts as chief justice, has criticized him.
The unhappiness arises basically from two of Roberts’s decisions on the same subject — finding Obama’s health-care act constitutional and then last year saving it from a potentially devastating challenge based on the language of the law. Roberts did not specifically mention those rulings in his remarks but seemed to allude to the subject in his description of a justice’s role.
The court issues “a lot of opinions where if I were in the legislature I certainly wouldn’t have voted for the program that was under review,” Roberts said. “I don’t necessarily agree with the substance of the every piece of legislation simply because I determine it’s within the Constitution for Congress” to enact it.
Roberts said he thinks the public skepticism concerning the court starts with the Senate confirmation process. Decades ago, two of the court’s most controversial justices — Antonin Scalia on the right and Ruth Bader Ginsburg on the left — were confirmed practically unanimously, he said.
While the conservative Roberts’s confirmation proceedings were relatively stress-free, it was not the same for the “extremely well-qualified” nominees who followed him — fellow George W. Bush nominee Samuel A. Alito Jr. and Obama’s choices, Sonia Sotomayor and Elena Kagan.
The conservative Alito and the two liberals were approved largely on party-line votes, despite few misgivings about their fitness for the job, Roberts said.
“That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees,” said the 61-year-old chief justice.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.
“And that’s just not how — we don’t work as Democrats or Republicans.”
Roberts did not mention another aspect of the court’s composition that adds to the partisan perception. For the first time in generations, the court’s five most conservative members are Republican appointees, and the four most liberal were nominated by Democrats. For decades, there had been at least one liberal Republican nominee or conservative Democratic choice.
The split on the court in its most controversial cases now follows those partisan fault lines.
Roberts said there is a “strong bond” that develops among the nine justices, even those who are consistently on opposite sides of the nation’s controversies.
“If you think about it — pick nine random people out of the room and throw them together and say, ‘Okay, you’ll work together for the next 25 years on some of the most important and divisive issues the country faces,’ ” Roberts said. “You do come to appreciate the good faith of the people with whom you work.”
Roberts is a genial and self-deprecating speaker, and Wednesday night he deflected praise from O’Brien about everything from how he controls the “reins of leadership” on the court to his high school days as captain of the football team.
His Catholic prep school was the smallest high school in Indiana with a football team, Roberts said. “There were 24 boys in my graduating class, and half of them were on the soccer team,” he said. “It wasn’t that hard to be captain.”
Roberts also disclosed that when he is writing an opinion, he has his siblings in mind.
“I have three sisters — none of them are lawyers, yet they are intelligent laypeople who have happy and busy lives,” Roberts said. “I like to think they can pick up one of my opinions and be able to read it and understand what the issue is and understand how it’s been resolved.”