John Roberts’ Big Complaint About Elena Kagan Is Deeply Ironic

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Kagan, pulling no punches, wrote that the court majority “violates the Constitution” by “exercis authority it does not have.” Roberts lamented the “disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” In ruling that the Biden administration exceeded its powers, “we have employed the traditional tools of judicial decisionmaking,” Roberts contended, warning that the public should not be “misled” to read this “heartfelt disagreement” over which “reasonable minds may disagree” as “disparagement.” Roberts’ bristling in Biden v. Nebraska over the dissenters’ temerity to claim that the six-justice majority crossed the line from legitimate application of judicial principles to a judicial power grab is more than a bit ironic. It held that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” The court in Moore didn’t really explain what those dense words mean, but the test put forward by the Moore majority seems to require federal courts to look at the opinions of state courts exactly the same way that the dissenters in Nebraska looked at the opinion of the court majority in Nebraska. In Moore itself, the North Carolina state Supreme Court decided that partisan gerrymandering violated the North Carolina Constitution’s protection for “free and fair” elections. Or maybe the Supreme Court would see a state Supreme Court as “arrogating” power vested in legislatures if the state court embraces a living constitutionalism, reading state constitutional provisions as malleable adapting to present values.