Kamala Harris is right to suggest that this country is facing a historical inflection point. This isn’t the first time that has happened, and it certainly won’t be the last. But the polarization that exists among the electorate is a reflection of the two disparate paths down which we might travel in the coming years.
At this point, we know that, among the three branches of government, the current president is firmly committed to one path, while the legislative branch is split between the two. On many of the most pressing issues we face, it is the judiciary branch that has yet to weigh in and could determine the direction we will head in the immediate future.
While members of the Supreme Court have sometimes surprised us with their votes on specific issues, we also know that overall there are typically five justices that lean conservative and four who lean liberal, which is why Justice Ginsburg recently warned us about what is to come.
Justice Ruth Bader Ginsburg warned on Friday that the court is likely to be sharply divided in the coming weeks over some of the “most watched” cases that remain…
The 86-year-old justice noted that, so far, there have been relatively few cases that broke down along familiar ideological lines but that could soon change. “Given the number of most watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold,” she said.
Ginsburg lamented the loss of Kennedy on the bench.”The event of greatest consequence of the current term, and perhaps for many terms ahead,” Ginsburg said, is that Kennedy “announced his retirement.”
The retirement of Kennedy is consequential because those sharp divisions on the court are now likely to be decided by John Roberts. At this point, we know two things about the chief justice that tend to point in opposite directions when it comes to his role on the court: (1) he is an ideological conservative, and (2) he eschews the politicization of the courts, while placing a high value on its institutional reputation.
The former was demonstrated when he voted to overturn a key element of the Voting Rights Act, after years of a professional career dedicated to eliminating civil rights protections. We witnessed the latter when he voted to uphold the Affordable Care Act, perhaps wanting to avoid making the Supreme Court accountable for stripping millions of Americans of their health care coverage.
In the coming weeks, the Court will announce its rulings on several major cases and we are likely to get some indication of whether Roberts will continue to try to thread the needle between those two aims, or if one of them will override the other. The most significant cases involve whether a citizenship question can be added to the 2020 census and challenges to gerrymandering in North Carolina, Maryland, and Virginia.
Should Roberts join with conservatives on those cases, he would signal a willingness to not only allow Republicans to engage in voter suppression, as he did with the Voting Rights Act, but he would also endorse their plan to use the census to manipulate the next redistricting process in a way that would be “advantageous to Republicans and Non-Hispanic Whites.” Finally, he would allow Republicans to gerrymander districts for partisan advantage.
In other words, we will soon learn if Chief Justice John Roberts is willing to endorse Republican plans that challenge our democratic traditions by allowing them to further subvert our electoral processes in a naked power grab. That will tell us a lot about which road is being taken by the judicial branch.
