Chief Justice John Roberts — nominated by President George W. Bush in 2005 — is the jurist Republicans love to hate, most notably due to his decisive vote to uphold Obamacare.
GOP presidential candidates Donald Trump and Ted Cruz have criticized Roberts during the campaign. And Tuesday, Senate Judiciary Committee Chairman Chuck Grassley took to the Senate floor and told Roberts to stay away from politics, because if Americans feel the court is political, it’s the court’s fault.
“The confirmation process has gotten political precisely because the court itself has drifted from the constitutional text and rendered decisions based instead on policy preferences … the chief justice is part of the problem,” Grassley said.
“He would be well served to address the reality, not the perception, that too often there is little difference between the actions of the court and the actions of the political branches,” Grassley added. “So, physician, heal thyself.”
Grassley’s comments come amid the partisan fight over President Barack Obama’s nomination of Judge Merrick Garland to join the high court, replacing the late Justice Antonin Scalia. Republican leaders say they will not hold hearings or vote on Garland’s nomination, despite Democratic pressure on individual senators such as Grassley.
Speaking in early February, just days before Scalia’s death, Roberts criticized the current partisan nature of the Supreme Court confirmation process, saying that the public looks at justices through political lenses as a result.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it would be viewed in those terms,” Roberts said at New England Law in Boston. “It’s natural for some member of the public to think 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. I think it’s a very unfortunate perception the public might get from the confirmation process.”
But there’s no separating politics from the Supreme Court, given the high number of controversial issues it takes up annually. This term, for example, justices are looking at abortion, the Obamacare contraceptive mandate, affirmative action, and key labor and voting rights cases, just to name a few.
That Roberts is being quoted regarding the politicization of the nomination process also rankles Republicans unhappy with his tenure. He sided with liberal justices to uphold Obamacare in 2012, then voted again last year to beat back another challenge to the Affordable Care Act. The court also voted to make same-sex marriage legal nationwide under Roberts’ watch, although the chief justice wrote the dissent in the case.
On Wednesday, Senate Minority Leader Harry Reid took to the Senate floor to defend Roberts, despite acknowledging, “I don’t agree with the chief justice on every opinion that he’s rendered.”
But, Reid added, “I have news for Senator Grassley: The American people don’t think the process of nominating a Supreme Court justice is political because the Supreme Court’s rulings don’t match an expectation of the political right or the political left,” he said, according to prepared remarks released by his office. “I have confidence that these men and women who serve on the court do the very best they can to rule on the law as they see it.”
Cruz, Trump take aim
Cruz originally backed Roberts in 2005 while he was the solicitor general in Texas.
“As an individual, John Roberts is undoubtedly a principled conservative, as is the president who appointed him,” Cruz wrote in a National Review op-ed, citing the nominee’s bio as a clerk for former Chief Justice William Rehnquist and positions in the Reagan White House and George H.W. Bush’s Justice Department. “As a jurist, Judge Roberts’s approach will be that of his entire career: carefully, faithfully applying the Constitution and legal precedent,” Cruz wrote. “The Senate should confirm him swiftly.”
Trump has used Cruz’s words against him as evidence the Texas senator can’t be trusted when it comes to a Supreme Court nod — using Obamacare as the prime example.
“It would’ve been dead if we had a different justice on the United States Supreme Court put there by him,” Trump said at a speech in Arkansas in February. “He’s the one that got Justice Roberts onto the United States Supreme Court,” Trump added.
Cruz, who was not in the Senate when Roberts was confirmed, has in recent years consistently criticized the chief justice and pledged to nominate strict constitutional conservatives.
“It was a mistake when he was appointed to the Supreme Court,” Cruz said at the CNN Reagan Library debate last September. “He’s a good enough lawyer that he knows in these Obamacare cases he changed the statute, he changed the law in order to force that failed law on millions of Americans for a political outcome.
“And, you know, we’re frustrated as conservatives,” Cruz added. “We keep winning elections, and then we don’t get the outcome we want.”