Mitch McConnell is terrible but John Roberts is actually the worst

His critics cast Senate Majority Leader Mitch McConnell (R-Ky.) as a great evil corrupting President Trump’s impeachment trial, perverting the historic assembly into a “sham.”

Yet Supreme Court Chief Justice John Roberts, the presiding judge at the trial, has escaped public attention — and that’s just how he likes it. He’s famously private and once claimed that judges should stay out of politics. His take: Their job is to be an unbiased umpire, and “nobody ever went to a ballgame to see the umpire.”

To understand how we got here — a place where McConnell ignores public will and does whatever he wants, unafraid that he and his fellow Republican senators will lose reelection — we must give Roberts a much harder look. After all, two decisions under his leadership of the high court have enabled the lawmakers’ shamelessness.

The infamous Citizens United decision in 2010 asked a narrow question involving only one company and its desire to screen an anti-Hillary Clinton film. But the court majority wrote a broad opinion affecting many well-established campaign finance laws, holding that corporations should enjoy the same First Amendment speech rights that the American people do. While Roberts did not write the majority opinion himself, he did join it in full and also wrote a rare concurrence defending the majority’s upending of precedent.

This ruling had immediate and explosive effects on the amount of money in American politics via the growth of corporate-funded super PACs. These groups, which do not always have to disclose donors, can spend unprecedented amounts to elect their preferred candidates. McConnell and his colleagues are counting on this money to protect them in the 2020 elections. That’s why overturning Citizens United has become a rallying cry for Democratic presidential candidates.

The second, more insidious decision is Shelby County v. Holder (2013). Roberts, writing for the majority, held that the Voting Rights Act of 1965, which exponentially increased voting by racial and ethnic minorities, used an outdated formula to determine local monitoring for discrimination. The decision limited how the Justice Department can prosecute discriminatory voting practices like voter ID laws and decreased access to polling places in minority communities. We have seen a corresponding decrease in voting from the very populations the legislation protected.

Subsequent decisions like Abbott v. Perez relied on Roberts’ language in Shelby County (2018) to let states get away with even more discriminatory actions. In this decision, based on Roberts’ argument that the Voting Rights Act was “irrational” for using historical formulas, Justice Samuel Alito wrote that courts cannot use past discrimination as evidence for current discriminatory practices. So, for jurisdictions the Justice Department has prosecuted for discrimination in the past, none of that evidence can be introduced in new cases, making it that much harder to protect minority voting rights.

These shifts protect McConnell and his friends in two ways.

First, the groups facing discrimination traditionally — though not always — vote Democratic. If their votes are suppressed, it helps Republicans. Second, racially gerrymandered maps, like the ones that the Justice Department can’t fight as a result of Abbott v. Perez, create electorally safe districts where kicking out an incumbent becomes nearly impossible, even if the district’s constituents disagree with their representative’s actions.

All of this has been eroding American democracy. While Roberts doesn’t always side with the conservative wing of the Supreme Court — he ruled with the liberals on the Affordable Care Act — his conservative views, nurtured while he was a young lawyer in the Reagan administration, have become so normalized that he has been eyed as the swing vote of the court.

This, ultimately, is what makes Roberts so much more dangerous than McConnell. He offers the pretense of impartiality, and takes pains to admonish “both sides” for being uncivil. This presents a picture of fairness to the American people. It’s persuasive to the middle-of-the-road Americans who make up a growing portion of the electorate.

But when he ignores both evidence and the Voting Rights Act, he is not acting impartially at all. Similarly, when he turns his head as Senate Republicans repeatedly break impeachment trial rules, he is far from a neutral arbiter. He is just as partisan as any elected Republican, but is permitted to hide his bias under complex legal language and obscure legal history.

At least McConnell doesn’t hide his utter contempt for established American political norms and institutions. Roberts is worse because he pretends he’s an umpire but has actually fixed the game.

Whitney Ross Manzo is an assistant professor of political science at Meredith College in Raleigh, N.C., as well as the assistant director of the Meredith Poll.

Tags Donald Trump Hillary Clinton Impeachment Mitch McConnell Samuel Alito

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