The Chief Justice of the United States is allergic to political science. He harbors numerous misconceptions about how voters behave and how they think. And these misconceptions often form the basis for his judicial decisions.
With Chief Justice John Roberts poised to become the Supreme Court’s crucial “swing vote” if any of the five justices to his left leave Court, these misconceptions could soon weave themselves into the way the court interprets the Constitution. The laws governing America’s elections — our right to choose our own leaders, rather than having them chosen for us — could soon bend to one man’s weak understanding of how elections work. To a large extent, they already have.
Roberts’ confusion was most recently on display during Wednesday’s oral argument in Benisek v. Lamone, a Supreme Court case challenging Maryland’s gerrymandered congressional maps. Early in the argument, Maryland Solicitor General Steven Sullivan claimed that his state was split about 60/40 between Democrats and Republicans. This troubled Roberts, who wondered aloud about the “percentage of independents in Maryland.”
The state, Roberts suggested, should offer him a “theory about how you’re supposed to take independent voters into account” in a partisan gerrymandering case. His implication seemed to be that a district that was drawn to favor one party or another may not be gerrymandered if it has a surfeit of “independent” voters, because those voters could swing the election either way.
As Justice Elena Kagan swiftly pointed out, this is a terrible misconception of what it means to be an “independent” voter. “Most people who are independents,” Kagan explained, “tend to lean pretty strongly one way or the other over many election cycles.”
She’s right. Though a significant minority of Americans self-identify as “independents,” the vast majority of these tend to reveal a preference for one party or the other. One analysis of independent voters found that “those who identify as independents today are more stable in their support for one or the other party than were ‘strong partisans’ back in the 1970s.” Other research suggests that self-described “independents” who lean towards the Democratic Party are less likely to vote for the GOP than some self-described “Democrats.”
Indeed, according to FiveThirtyEight’s Harry Enten, “self-identified independents who consistently favor one party are often more ideologically extreme than those who identify with either party.” At least some voters identify as “independent” because they are hardline conservatives who don’t think of themselves as Republicans because they view the GOP as too liberal, or staunch leftists who refuse to label themselves as “Democrats” because they believe the Democratic Party isn’t far enough to the left — think of Sen. Bernie Sanders, who still positions himself an “independent” despite the fact that he sought the Democratic presidential nomination.
Altogether, only about 10 percent of the American electorate are “true independents.”
In fairness to the Chief Justice, his misunderstanding of how self-described independents actually behave on Election Day is widespread. Political punditry analyzing whether “independent voters,” as a bloc, will prefer Democrats or Republicans is a mainstay of election year punditry. But Roberts isn’t just some guy spouting nonsense on TV. He is arguably the most powerful judge in on the planet. And his misconceptions about independent voters are part of a much larger pattern.
America, according to Chief Justice Roberts, was no longer racist enough to justify the “extraordinary measures” employed by a fully operational Voting Rights Act.
Three years later, America elected Donald Trump.
Consider the Chief Justice’s 2013 opinion in Shelby County v. Holder, which neutralized a key provision of the Voting Rights Act. That provision required certain states and localities with a history of racial voter suppression to “preclear” any new voting laws with officials in Washington, DC. It was a fail-safe, to make sure these states did not fall back into old patterns. It was also a key element of one of the most successful civil rights laws in American history.
On the day President Lyndon Baines Johnson signed the Voting Rights Act into law, less than 7 percent of Mississippi’s black voter population was registered to vote. Just two years later, the black voter registration rate was nearly 60 percent.
And yet, Roberts held in Shelby County that America no longer needs this shield over our elections. In an opinion Justice Ruth Bader Ginsburg likened to “throwing away your umbrella in a rainstorm because you are not getting wet,” Roberts proclaimed that “things have changed dramatically” in the United States since the Voting Rights Act became law. “Blatantly discriminatory evasions of federal decrees are rare,” Roberts claimed. “Minority candidates hold office at unprecedented levels.” America, according to Chief Justice Roberts, was no longer racist enough to justify the “extraordinary measures” employed by a fully operational Voting Rights Act.
Three years later, America elected Donald Trump.
Consider, as well, Roberts’ opinion in McCutcheon v. FEC, which legalized many forms of money laundering by wealthy political donors. The core of McCutcheon is that the government is only allowed to enact campaign finance laws that address a very narrow kind of political corruption — “dollars for political favors.” More subtle forms of corruption, such as when donors give money in exchange for “’influence over or access to’ elected officials or political parties,” cannot be regulated.
Thus, if a drug company executive spends millions of dollars to help reelect a lawmaker, and that lawmaker abruptly switches his position on a bill that would make that executive’s company billions of dollars, Roberts sees nothing wrong with such an arrangement — so long as the executive never actually communicated that he was buying the lawmaker’s support for a particular bill.
McCutcheon, moreover, built upon the Court’s decision in Citizens United v. FEC, which Roberts joined. There, the Court did not just greenlight dollars-for-access corruption, it suggested that such corruption is actually good.
Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.
Never mind, of course, that the vast bulk of voters will never be able to afford this kind of “responsiveness” because they don’t have thousands — or millions — of dollars lying around that they can spend on elections. Research conducted by political scientists strongly indicates that elected officials are far more likely to grant access to donors of any stripe than they are to mere mortals.
Roberts’ aw-shucks attitude towards elections, moreover, is likely to rear its head again in the gerrymandering cases — and in a far more consequential way than his brief aside about independent voters.
The core of the plaintiffs’ argument in Whitford is a mathematically formula that can be used to identify maps that were likely drawn to advantage one party or the other. It’s not an especially difficult formula to understand.
In a nutshell, gerrymandering is accomplished through two related tactics: “cracking,” where voters from the disfavored party are chopped up into multiple districts where they are unlikely to have much influence; and “packing,” where voters from one party are crammed into as few districts as possible. Cracked voters typically waste their vote on a candidate who loses. Packed voters typically elect the candidate of their choice by massive margins, causing many of these voters to waste their vote on a candidate who would have won anyway.
In a fair map, roughly equal numbers of Democrats and Republicans will cast “wasted” votes — meaning that they either vote for the losing candidate or they vote for a candidate who would have won with or without them. In a gerrymandered map, by contrast, voters from one party will cast significantly more wasted votes than the voters in the other party. The Whitford formula counts up the number of wasted Democratic votes and compares it to the number of wasted Republican votes. If there is a big disparity, that suggests that the map was gerrymandered.
To Roberts, however, this exercise in arithmetic was akin to sorcery. And he worried that it was so confusing that it would cause voters to lose faith in the Court.
In gerrymandering cases, the Chief Justice claimed, “we will have to decide in every case whether the Democrats win or the Republicans win.” And when, say, the Democratic Party wins, people will ask why, and the answer will be “because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes.”
“The intelligent man on the street,” Roberts believed, “is going to say that’s a bunch of baloney.”
Justice Stephen Breyer wanted no part of this effort to present math as black magic, and he offered an even simpler answer to Roberts’ “intelligent man on the street.” The reason why the Democrats should win in a case involving an aggressive Republican gerrymander, Breyer explained, “is because if party A wins a majority of votes, party A controls the legislature. That seems fair.”
Yet, for Roberts, this very basic insight proved elusive, as did very basic facts about corruption, racism, and the way voters describe themselves.
It’s tempting to dismiss Roberts’ views as nothing more than partisanship — perhaps he’s merely pretending to be bad at math because he is a Republican and Republicans will benefit from a decision preserving gerrymandering. Certainly, there is good reason to suspect such bad faith on the part of some of Roberts’ colleagues.
But Roberts’ record on the bench has demonstrated that he is also unlike his fellow Republican justices in some interesting and significant ways. For instance, he largely rejected the partisan lawsuit seeking to strangle Obamacare in its crib. And he has, at times, gone out of his way to warn his fellow conservatives not to push for too much or else they will get burned — by him. Roberts’ views on elections, in other words, likely come from a place of genuine naïveté. He knows not what he does.
Unfortunately, Roberts also appears to have little interest in learning the things that he does not know. And, if Trump gets to put someone else on the Supreme Court, Roberts will soon have the keys to the Constitution.