The not-at-all-subtle partisanship of Chief Justice Roberts

Chief Justice John Roberts (AP Photo/Rogelio V. Solis)

On Tuesday, the Supreme Court heard arguments in Gill v. Whitford, a landmark case that could drive a stake in many of the nation’s most aggressive partisan gerrymanders. Chief Justice John Roberts, however, wanted no part of this effort. In a candid exchange with voting rights attorney Paul Smith, the author of the Supreme Court’s opinion gutting much of the Voting Rights Act fretted that stepping in to halt partisan gerrymanders would just be seen as too political.

“We will have to decide in every case whether the Democrats win or the Republicans win,” said Roberts, who represented George W. Bush in Bush v. Gore. That will be a problem, Roberts asserted, because a mathematical formula Smith’s legal team suggested to the Court as a method of sniffing out partisan gerrymanders will not convince the public.

If you’re the intelligent man on the street and the Court issues a decision, and let’s say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to 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.

And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. . . . And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.

Roberts is, indeed, correct that the perception of partisanship can do terrible harm to the Court’s reputation. Though it is somewhat odd that he has suddenly grown fearful that the Court’s reputation might suffer if it strikes down election laws that benefit one party over the other. Here is a short list of cases where Chief Justice Roberts has voted to strike down such a law.


In each of these cases, in other words, Roberts voted to intervene in a way that advantaged Republicans over Democrats. Meanwhile, Roberts has heard several other election law cases where he called upon his Court not to intervene.

So Roberts is right that, when the Court appears to favor one party over the other, it does “very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.” He just hadn’t seemed very concerned about this problem in the past.