I would also add that it is not merely that Roberts seeks to defer to Congress on matters of legislation. When the Supreme Court struck down a section of the Voting Rights Act a couple of years ago, he mentioned that the pre-clearance provision of this Act was outdated relative to (what he and the majority perceived as) the improving racial conditions on the ground. He seemed to suggest that the legislation should be updated if proponents of the act want it to survive judicial scrutiny. The main point: although Roberts, as a purposivist, is willing to focus on the intent of Congressional legislation, he is not above also, in contradiction to this intent, putting in his own opinion on how such a law should be revised. If he were completely in deference to Congressional intent, he would have accepted the pre-clearance statute--regardless of its alleged inapplicability to the real world of a country that has made "great strides."
12
When are atheists and non-believers going to get a fair shake at the Court?
12
The Bible and the Constitution are the roadmap of the American experience. As with the Bible, one can find almost any passage that can make a case for almost anything. A good judge can always make a credible case to backup any decision. The courts are all "cafeteria judges"...picking and choosing whatever laws to make their case..
2
Thee conservatives on the Court claim to be the upholders of the Constitution. That document is out of date, because the founding fathers did not make allowances for progress, both in social mores and technology. They were a highly prejudiced bunch: they condoned slavery, the held that women were essentially property and withheld their right to vote, they decreed that only white property owners could vote. Those were the social mores of the day. They did agree on the freedom of religion, perhaps by considering the pilgrims and their strict views that tolerated little dissent on tat subject. -
Using his Textualism approach, the ultra conservatives on the Court are assuming that those who write the text of the laws are sufficiently intelligent to word them correctly,without fault. In fact, most laws are written by staff, lobbyists, with input from Members of Congress. None of those are without prejudices, and in many cases they are influenced by ideology, crass financial interests of their "employers", and sheer ignorance and inability to write precisely what they wish to say. Many (most ?) laws are written sloppily, often in haste, and few voting Members read part or all of it, so they only follow the party line or what their donors tell them it says. --- To base a decision on such faulty,imprecise text is the hight of irresponsibility. "Purpose" as a basis is intellectually and logically the only route the Court should take, considering who writes the laws and statues.
Using his Textualism approach, the ultra conservatives on the Court are assuming that those who write the text of the laws are sufficiently intelligent to word them correctly,without fault. In fact, most laws are written by staff, lobbyists, with input from Members of Congress. None of those are without prejudices, and in many cases they are influenced by ideology, crass financial interests of their "employers", and sheer ignorance and inability to write precisely what they wish to say. Many (most ?) laws are written sloppily, often in haste, and few voting Members read part or all of it, so they only follow the party line or what their donors tell them it says. --- To base a decision on such faulty,imprecise text is the hight of irresponsibility. "Purpose" as a basis is intellectually and logically the only route the Court should take, considering who writes the laws and statues.
8
The author states that Roberts identified particular clauses in the constitution for his various rulings but not one that protected a right of marriage equality. Isn't it obvious that by refusing to apply the equal protection clause of the 14th amendment he made a subjective judgment as to its applicability, as it is whenever such an exercise is undertaken. I think it's funny to hear somebody like Scalia talking about unelected judges overturning the will of the people on one case, and yet arguing that in another where he rules a statute unconstitutional, it's all about constitutional principles. Isn't it time to get beyond this silliness and finally acknowledge that, while principles matter, humans first find a result they want and then find a justification for it and the most that we can hope for is that on easy cases, judges won't completely jump ship for a result they would like, but on hard cases, where gray areas abound, judges, being human, will do what they think is right, and rationalize it somehow? But one can see why the charade is necessary... but those who write about the court may be more helpful if they don't start with the premise there is no charade...
8
The ONLY reason the 4 justices dissented is they do not believe in the separation of church and state hence their fear of reprisal by their 'GOD' which commands them to use any and all means necessary to scramble words together that will make them commendable to their God on High in His Holy Kingdom. This is the real reason beneath all the posturing and legal jargon -- their fear of being punished by God in their 'Afterlife' for betraying their own self made laws which are in direct opposition to our most cherished and sacred founding premise:
the separation of church and state is in fact the true embodiment of our modern democracy and no RELIGIOUS THEOLOGY shall have the power to abridge or define law based on religious preferences so that each and every citizen can enjoy freedom of religion on their own terms without fear of reprisal from other religions. This is the reason our country was founded to escape the tyranny of a combined church and state (England) that usurped all individual religious freedoms for the citizenry. The 4 dissenting justices should be duly ashamed.
the separation of church and state is in fact the true embodiment of our modern democracy and no RELIGIOUS THEOLOGY shall have the power to abridge or define law based on religious preferences so that each and every citizen can enjoy freedom of religion on their own terms without fear of reprisal from other religions. This is the reason our country was founded to escape the tyranny of a combined church and state (England) that usurped all individual religious freedoms for the citizenry. The 4 dissenting justices should be duly ashamed.
9
As Linda Greenhouse pointed out in 2012 about Roberts:
http://opinionator.blogs.nytimes.com/2012/05/30/the-fire-next-term/
“As a young lawyer in the Reagan administration, John Roberts opposed robust enforcement of federal civil rights laws. His opposition ... briefly became an issue at his Senate Judiciary Committee hearing [2005]. But the senators, evidently persuaded that as chief justice he would just be an umpire calling balls and strikes, moved on.
“I don’t generally believe in tagging middle-aged people with the deeds of their youth, but there has been remarkable consistency between young lawyer Roberts and Chief Justice Roberts.”
From 1982, through his artful dodger performance in Namudno (2009), and up to the coup de grâce with Shelby v. Holder, Roberts has shown the consistency of an ideologue, not the consistency of someone who “embrace[s] … judicial deference to democratic decisions.”
Again, Greenhouse, in ADVANCE of the Shelby decision, and I paraphrase:
http://opinionator.blogs.nytimes.com/2013/03/06/a-big-new-power/?hp
“How on earth … did it come to pass that five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier ‘to enforce, by appropriate legislation’ the right to equal protection and the right to vote.”
Oh, it was just “purposivism” what made him do it, fatuously intones Rosen!
http://opinionator.blogs.nytimes.com/2012/05/30/the-fire-next-term/
“As a young lawyer in the Reagan administration, John Roberts opposed robust enforcement of federal civil rights laws. His opposition ... briefly became an issue at his Senate Judiciary Committee hearing [2005]. But the senators, evidently persuaded that as chief justice he would just be an umpire calling balls and strikes, moved on.
“I don’t generally believe in tagging middle-aged people with the deeds of their youth, but there has been remarkable consistency between young lawyer Roberts and Chief Justice Roberts.”
From 1982, through his artful dodger performance in Namudno (2009), and up to the coup de grâce with Shelby v. Holder, Roberts has shown the consistency of an ideologue, not the consistency of someone who “embrace[s] … judicial deference to democratic decisions.”
Again, Greenhouse, in ADVANCE of the Shelby decision, and I paraphrase:
http://opinionator.blogs.nytimes.com/2013/03/06/a-big-new-power/?hp
“How on earth … did it come to pass that five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier ‘to enforce, by appropriate legislation’ the right to equal protection and the right to vote.”
Oh, it was just “purposivism” what made him do it, fatuously intones Rosen!
16
There is, perhaps, a greater feather in Judge Roberts cap, and that it is that he has been an excellent Chief Justice --that is, in making sure that the Court can function with widely opposite views in a guise of respect and getting things done. And even when he is totally opposed to the Court's decision.
It is clear that nobody else in the Conservative side could work well with others in a leadership position, with the exception perhaps of Judge Alito, and perhaps only Justices Kagan and Sotomayor could be leaders of the Court --not because their counterparts aren't brilliant minds, but because the Chief Justice creates a working environment where all views get their fair share. Justice Roberts, it appears, has succeeded in this even when fully opposed to the majorities in the Court, as in the decision elevating same sex marriage, and that is no small achievement.
It is clear that nobody else in the Conservative side could work well with others in a leadership position, with the exception perhaps of Judge Alito, and perhaps only Justices Kagan and Sotomayor could be leaders of the Court --not because their counterparts aren't brilliant minds, but because the Chief Justice creates a working environment where all views get their fair share. Justice Roberts, it appears, has succeeded in this even when fully opposed to the majorities in the Court, as in the decision elevating same sex marriage, and that is no small achievement.
10
The concepts of “purposivism” vs "textualism" are the key to not only understanding the differences of ideology on the Supreme Court. They are also a key to understanding much of the differences in how one looks at life in general including our religions.
To my way of thinking:
Purposivism reflects looking forward to the future within the reality and purpose of our past foundations. In the SCOTUS it means looking at the reality of what the words of the law or the Constitution and its Preamble are intended to do. In religion it is the reality of applying the intent and example of the Bible, the Quran or Whatever to meet and promote an the original philosophy/faith rather than the worship of original words and a past reality.
Textualism on the other hand means rote word reading without the context of either the current reality or the changes in language, knowledge, technology and environment since the words were written. It is more about preserving
a past that can never be into a future that will always be changing.
All of us, conservatives and liberals, the far right and the far left, Independents, Christians (both Catholic and others), Jews of all stripes and Muslims, both Sunni and Shia mix these concepts together in varying combinations and degrees.
Scalia is a conservative and an extreme textualist to the point of blindness to reality.
Roberts is a conservative but a purposivist in the recognition of reality.
This purposvist respects Roberts and fears Scalia.
To my way of thinking:
Purposivism reflects looking forward to the future within the reality and purpose of our past foundations. In the SCOTUS it means looking at the reality of what the words of the law or the Constitution and its Preamble are intended to do. In religion it is the reality of applying the intent and example of the Bible, the Quran or Whatever to meet and promote an the original philosophy/faith rather than the worship of original words and a past reality.
Textualism on the other hand means rote word reading without the context of either the current reality or the changes in language, knowledge, technology and environment since the words were written. It is more about preserving
a past that can never be into a future that will always be changing.
All of us, conservatives and liberals, the far right and the far left, Independents, Christians (both Catholic and others), Jews of all stripes and Muslims, both Sunni and Shia mix these concepts together in varying combinations and degrees.
Scalia is a conservative and an extreme textualist to the point of blindness to reality.
Roberts is a conservative but a purposivist in the recognition of reality.
This purposvist respects Roberts and fears Scalia.
1
chief justice roberts continues to surprise me with his decisions, however, when taking into account this article, is makes a little more sense. i will try to view his future decisions through this lens of purposivism.
I think most of these comments are cogent; although premised on each of your own ideological paradigms. I like the discussion about the role of the judiciary, although I feel the two cases this article points to inevitably leverage commenters to argue their own opinions on the issue (whether they realize or not). I am more interested in the discussion of justices voting along party lines. While this article is about Roberts, would anybody here argue that Justices Sotomayor, Kagan, Ginsburg, or Breyer are innocent when it comes to embracing partisan positions on issues? I am driving at the fact that the mere fact that justices are on the supreme court does not immunize them from being bias or driven by their own ideologies. If we can accept that justices are always going to be bias to a certain extent it might be easier to accept the judicial restraint Roberts advocates for.
2
Jeffrey Rosen's analysis suffers from two significant problems.
First, his description of John Roberts as a model of consistent judicial restraint ignores any number of opinions in which the Chief Justice is the poster child for judicial activism. Bush v. Gore, anyone?
Second, Rosen resurrects the same misplaced umpire analogy Roberts somehow got away with in his confirmation hearing, an analogy that shows a regrettable ignorance of both judges and baseball.
As baseball fans know, some umpires have a narrower interpretation of the official strike zone than others. That is why umpires with an expansive, shall we say more liberal, strike zone are considered "pitcher's umpires," while those with a narrower, more constricted, let us say conservative, strike zone are preferred by hitters. Unfortunately, Roberts' use of the umpire analogy, rather than revealing his true judicial perspective, allowed him to avoid revealing to the Judiciary Committee anything about his actual "judicial strike zone."
While surely unintentional, Mr. Rosen's use of the same misplaced analogy is likewise, more distortion than description.
First, his description of John Roberts as a model of consistent judicial restraint ignores any number of opinions in which the Chief Justice is the poster child for judicial activism. Bush v. Gore, anyone?
Second, Rosen resurrects the same misplaced umpire analogy Roberts somehow got away with in his confirmation hearing, an analogy that shows a regrettable ignorance of both judges and baseball.
As baseball fans know, some umpires have a narrower interpretation of the official strike zone than others. That is why umpires with an expansive, shall we say more liberal, strike zone are considered "pitcher's umpires," while those with a narrower, more constricted, let us say conservative, strike zone are preferred by hitters. Unfortunately, Roberts' use of the umpire analogy, rather than revealing his true judicial perspective, allowed him to avoid revealing to the Judiciary Committee anything about his actual "judicial strike zone."
While surely unintentional, Mr. Rosen's use of the same misplaced analogy is likewise, more distortion than description.
4
I'm sorry, but there's a great deal of sophistry in Roberts' judicial philosophy. To say that the constitution says nothing about gay marriage is at once factually true and morally obtuse. The 14th Amendment clearly and unequivocally guarantees equal protection under the law to ALL citizens. By what logic, then, are we allowed to deny the basic right to marriage to our fellow citizens? All of the supposedly "legal" arguments against gay marriage mask a discriminatory impulse. Roberts, Scalia, Thomas, Alito, or any other American is free to dislike homosexuality or to find it morally reprehensible, etc. But these personal feelings provide no legal basis to deny your fellow citizens their fundamental civil and human rights. It's interesting and enlightening to review the history of the 14th Amendment, which many conservatives have struggled with since its institution in 1868, when it was drafted to ensure the civil rights of African Americans following the Civil War. I'm extremely grateful for and proud of this Amendment, which time and time again has been instrumental in extending basic human rights to women and minorities.
5
The 4 dissenters took similar approaches, although Roberts' was the most coherent. Roberts argued that, historically and traditionally (he avoided religion, metaphysics and so-called natural law), marriage a heterosexual "essence" that was enshrined in state law and, since the Constitution left marriage laws up to the state, could be changed only by state action.The 14th amendment "liberty" (substantive due process) and equal protection mandates, Roberts argues, merely ensure that no one entitled 14th Am. protections is ill-served. Since the "essential" definition of marriage was for the states to alter, the Court could not consider whether gays were disadvantaged by exclusion: the Supreme Court could not shoe-horn gays into the definition via the equal protection/due process action. To do so, Roberts said, violated constitutional principles and was merely an effort to incorporate the majority's political views into what should be a purely judicial process. Otherwise, why stop there? Why not polygamy?
Roberts is right -- if there is no essential definition of marriage, then anyone can claim 14th am protections without prior state action. The process becomes political.
Which, in fact, it always has been. Lochner was overruled because public opinion changed, and New Deal economics replaced early 20thC laissez-faire capitalism. There are no "essential" definitions. Politics always governs process in a democracy: which is why it is so important to select the right leaders.
Roberts is right -- if there is no essential definition of marriage, then anyone can claim 14th am protections without prior state action. The process becomes political.
Which, in fact, it always has been. Lochner was overruled because public opinion changed, and New Deal economics replaced early 20thC laissez-faire capitalism. There are no "essential" definitions. Politics always governs process in a democracy: which is why it is so important to select the right leaders.
4
While my respect for Justice Roberts went up this week, I am truly baffled by his dissent in Obergefell v. Hodges. If the majority opinion in the case is not solidly premised on a literal reading of the 14th Amendment, then I guess I don't understand the 14th Amendment. How can you read the text of the Amendment and think it is OK to sanction legal discrimination against gay people?
4
I would recommend to all those that argue that "textualim" or the doctrine that purports to hold that strict, conservative, meaning is all that matters in the interpretation of words would do well to read the works of Derrida. The French philopher and others have demonstrated that meaning can not be "deconstructed", that is it can not be learned in its final form for meaning is constantly distilling further signification, endlessly. In fact there is no final form. Ever. Take the word "black" for example. At some point it was a terribly derogatory term when used to refer to a human being. Today it is the polite, correct word. The court would do well to be weary of ascribing final, exact meaning to words written in the 18th century by the authors of our constitution. It is absolutely foolish and naive to presume that that syntagmatic order can render precise, unasailable meaning. Things are never that easy!
1
"Nobody ever went to a ballgame to see the umpire.” True. But everyone who attends a game expects it to be "fair".
An ump would be booed and excoriated for interpreting balls and strikes in a way that seemed to favor one team over another. So fairness, not past history, is ever the key determinate in the eyes of both fans and players. All may wail at a call, but if it does not tip the outcome -- the "fairness" factor -- unduly, we'll grumble at the what-ifs and move on. But to adhere to rigidity for the sake of rigidity rather than fairness will not result in an ump remaining an ump.
But that is where the analogy ends, because umps don't control their own fate -- owners do -- whereas the last thing a Supreme Court Justice has to worry about is being fired.
An ump would be booed and excoriated for interpreting balls and strikes in a way that seemed to favor one team over another. So fairness, not past history, is ever the key determinate in the eyes of both fans and players. All may wail at a call, but if it does not tip the outcome -- the "fairness" factor -- unduly, we'll grumble at the what-ifs and move on. But to adhere to rigidity for the sake of rigidity rather than fairness will not result in an ump remaining an ump.
But that is where the analogy ends, because umps don't control their own fate -- owners do -- whereas the last thing a Supreme Court Justice has to worry about is being fired.
8
The Chief Justice reminds me of Ferdinard Feghoot as he moves through time and space trying to keep up with the changes in a world that resembles less and less of what be was taught to believe.
So, Scalia's view "holds that judges should confine themselves to interpreting the words that Congress chose without trying to discern Congress’s broader purposes."
In the case of the second ammendment surely this must be wrong. Does he really think the framers envisioned State militia members needing to wander around churches and stores while armed; especially with weaponry not provided by the State?
In the case of the second ammendment surely this must be wrong. Does he really think the framers envisioned State militia members needing to wander around churches and stores while armed; especially with weaponry not provided by the State?
I see a Chief Justice smartly saving face in two big cases where his vote was numerically irrelevant. Without the option or the obligation to actually form the opinion of the Court, he took the opportunity to look objective and consistent. But in cases where his vote actually made a difference, he struck while the iron was hot, in favor of a pro-corporation, anti-democratic neoconservative vision.
2
I think Roberts is looking for a good opportunity to rein in political corruption resulting from Citizens United. We can only hope that such a case is in the pipeline.
1
No American alive at the time the Constitution was written, including gays, could have imagined that gay marriage would ever be recognized as a right under the Constitution. The proper way to move ahead with this would have been a constitutional amendment.
1
Chief Justice Roberts is an excellent jurist, having a thoughtful position, and an excellent person!
It seems that some can not admit that their position has been upset by the methodology of the US Constitution, and just get on with their lives
It seems that some can not admit that their position has been upset by the methodology of the US Constitution, and just get on with their lives
Judicial activism is all about whose ox is being gored.
Judicial textualism is about following the catechism. There is no analogue to the Talmud in Christianity, especially in the Catholic Church.
Judicial purposivism is akin to discerning the rules in Alice's chess game with the Red Queen, "I don’t know what you mean by your way. All ways about here belong to me."
Judicial textualism is about following the catechism. There is no analogue to the Talmud in Christianity, especially in the Catholic Church.
Judicial purposivism is akin to discerning the rules in Alice's chess game with the Red Queen, "I don’t know what you mean by your way. All ways about here belong to me."
The 4 dissenters took similar approaches, although Roberts' was the most coherent. Roberts argued that, historically and traditionally (he avoided religion, metaphysics and so-called natural law), marriage was a heterosexual "essence" that was enshrined in state law and, since the Constitution left marriage laws up to the state, could be changed only by state action.The 14th amendment "liberty" (substantive due process) and equal protection mandates, Roberts argued, merely ensured that no one entitled 14th Am. protections was ill-served. Since the "essential" definition of marriage was for the states to alter, the Court could not consider whether gays were disadvantaged by exclusion: the Supreme Court could not shoe-horn gays into the definition via the equal protection/due process route. To do so, Roberts said, violated constitutional principles and was merely an effort to incorporate the majority's political views into what should be a purely judicial process. Otherwise, why stop there? Why not polygamy?
Roberts was right -- if there is no essential definition of marriage, then anyone can claim 14th am protections. The process becomes a primarily political one.
Which, in fact, it always has been. Lochner was overruled because public opinion changed and New Deal economics replaced early 20thC laissez-faire capitalism. There are no "essential" definitions. Politics always governs process in a democracy: which is why it is so important to select the right leaders.
Roberts was right -- if there is no essential definition of marriage, then anyone can claim 14th am protections. The process becomes a primarily political one.
Which, in fact, it always has been. Lochner was overruled because public opinion changed and New Deal economics replaced early 20thC laissez-faire capitalism. There are no "essential" definitions. Politics always governs process in a democracy: which is why it is so important to select the right leaders.
Where Roberts and others are wrong on basic principles of justice is that human rights are not subject to democratic votes. If one is human one has them. State legislatures and referendums are not only irrelevant to human rights; they are often an affront to them. You cannot ethically vote yes or no if slavery is wrong; it is wrong period because humans should not be bought and sold. You cannot vote on whether "separate but equal" should be the law, or whether your country should have Apartheid or women be "allowed" to vote. Even when such votes occur and the outcome positive, as with the 19th Amendment, they merely affirm what was true before the vote was ever held. Apartheid, slavery, Jim Cow, and disenfranchisement were wrong because they violate our basic humanity. And it is precisely the function of the courts to step in when our humanity is threatened, especially when it is threatened by the "will of the people." We cannot leave fundamental human rights such as the right to marry to the electorate and say in essence "let the people decide." Roberts has many fine qualities and certainly works to be even-handed, but this is an area where he fails to truly understand the purpose of the Court and the true meaning of justice, unlike his colleague, Anthony Kennedy, and the liberal side of the bench.
42
A right-wing attempt to turn a decent result Roberts couldn't prevent and an idiotic argument he was too ashamed to sign on to into political capital.
1
Umpires don't just call balls and strikes. They define the size of the strike zone--doing so precedes the calling of balls and strikes and is open to wide interpretation--decide whether hits are fair or foul, whether runners are safe or out at the bases, whether balls are caught or dropped, and otherwise interpret the rules of the game. How anybody could let Roberts get away with his balls or strikes definition of a Supreme Court justice escapes me. It's all a matter of interpretation
Roberts' opinion on ACA have been irrational and here is an explanation why.
If both of the ACA challenges had hit the Supreme Court during the same Congress that enacted the ACA, Roberts historical record indicates that he would have ruled to put the requirement to fix the problem back to Congress.- He would have surmised that COngress could fix they errors. However, he took into account that the Congress had changed since the ACA had been enacted and the new Congress would not have easily solved the problem. Any consideration of the change in Congress is TOTALLY inappropriate for a judiciary to do. This is why John Roberts failed in his duty as a just and rational Chief Justice.
If both of the ACA challenges had hit the Supreme Court during the same Congress that enacted the ACA, Roberts historical record indicates that he would have ruled to put the requirement to fix the problem back to Congress.- He would have surmised that COngress could fix they errors. However, he took into account that the Congress had changed since the ACA had been enacted and the new Congress would not have easily solved the problem. Any consideration of the change in Congress is TOTALLY inappropriate for a judiciary to do. This is why John Roberts failed in his duty as a just and rational Chief Justice.
As as textualist and a Christian, does Justice Scalia also think that God created the world in seven days, as that text of texts, the Bible says?
Or that Adam and Eve were tempted by the Devil in the form of a serpent? Or that Noah actually filled the Ark with two of every animal species?
On second thought, he probably does.
Or that Adam and Eve were tempted by the Devil in the form of a serpent? Or that Noah actually filled the Ark with two of every animal species?
On second thought, he probably does.
2
I would like to see a statistical analysis of cases during the Roberts court. I believe the outcome would be far fewer umpire decisions than activist decisions, but I will leave that to the legal minds to parse.
2
Someone needs to explain judicial activism to Scalia. He is want of the most activist Justices in the history of the Court.
2
Justice Kennedy, since when is marriage the keystone of social order? It is in the bible but is it in the constitution?
2
And what does the umpire do when the pitcher won't throw because the batter is gay?
1
"In all of these cases, however, Chief Justice Roberts identified a particular clause of the Constitution — the First Amendment, the Fifth Amendment or the 14th Amendment — that he believed invalidated the federal law in question."
Not true. In Shelby v. Holder, Roberts does not point to any clause in the constitution which specifies that congress, in the application of scrutiny in voting regulations, must base such scrutiny on some formula which the Supreme Court judges to be rational. It seems to me that this is a political question, and congress has the power to apply scrutiny however it likes (provided that such scrutiny serves the purpose of protecting voting rights rather than destroying them). Roberts can only cite a vague "equal sovereignty of the states" concept for his reasoning.
Roberts has portrayed himself as a neutral umpire. But in Shelby, he simply imposed his own view and ignored Congress.
Not true. In Shelby v. Holder, Roberts does not point to any clause in the constitution which specifies that congress, in the application of scrutiny in voting regulations, must base such scrutiny on some formula which the Supreme Court judges to be rational. It seems to me that this is a political question, and congress has the power to apply scrutiny however it likes (provided that such scrutiny serves the purpose of protecting voting rights rather than destroying them). Roberts can only cite a vague "equal sovereignty of the states" concept for his reasoning.
Roberts has portrayed himself as a neutral umpire. But in Shelby, he simply imposed his own view and ignored Congress.
Supreme Court justices decide cases on the basis of expediency.
A Justice decides what result he/she wants and then dredges up some rationale to support that particular decision.
The justices are all experienced lawyers.
If cases were decided on the basis of the Constitution, there should not be so many 5-4 decisions.
A Justice decides what result he/she wants and then dredges up some rationale to support that particular decision.
The justices are all experienced lawyers.
If cases were decided on the basis of the Constitution, there should not be so many 5-4 decisions.
1
From Professor Rosen's article:
"However, the chief justice’s commitment to judicial restraint and a limited conception of the court’s institutional role is not unvarying. "
Doesn't this confirm that Chief Justice Roberts decides cases on the basis of expediency and not law.
"However, the chief justice’s commitment to judicial restraint and a limited conception of the court’s institutional role is not unvarying. "
Doesn't this confirm that Chief Justice Roberts decides cases on the basis of expediency and not law.
The philosophy of judicial restraint wasn't apparent when the Roberts Court gutted the Voting Rights Act:
“not a single vote in the Senate was against (The Voting Right Act). And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable—very likely attributable—to a phenomenon that is called ‘perpetuation of racial entitlement.’ Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”
Roberts and crew made a mockery of the law by assuming the role of Congress to determine racial bigotry is over and voting rights are no longer being infringed on that basis.
In fact, after the ruling the very same southern states covered by the Voting Rights Act immediately passed laws making it harder for minorities to vote.
Roberts had the audacity to express in dissent to Obergefell v. Hodges:
"Judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise neither force nor will but merely judgment."
So the Supreme Court can decide that the expressed will of Congress was incorrect and that racial bigotry in the country is over, but they aren't deciding what the law should be?
State laws banning same sex marriage that conflict with the Constitution shouldn't be decided by the Supreme Court?
This Umpire in Chief is terribly confused.
“not a single vote in the Senate was against (The Voting Right Act). And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable—very likely attributable—to a phenomenon that is called ‘perpetuation of racial entitlement.’ Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”
Roberts and crew made a mockery of the law by assuming the role of Congress to determine racial bigotry is over and voting rights are no longer being infringed on that basis.
In fact, after the ruling the very same southern states covered by the Voting Rights Act immediately passed laws making it harder for minorities to vote.
Roberts had the audacity to express in dissent to Obergefell v. Hodges:
"Judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise neither force nor will but merely judgment."
So the Supreme Court can decide that the expressed will of Congress was incorrect and that racial bigotry in the country is over, but they aren't deciding what the law should be?
State laws banning same sex marriage that conflict with the Constitution shouldn't be decided by the Supreme Court?
This Umpire in Chief is terribly confused.
15
Concerning Justice Scalia's embrace of textualism - all I can say is what a crock. To assume that the fools in congress are capable of writing hundreds of pages of text without ambiguities is just plain idiotic. I would love to hear Justice Scalia's interpretation of the bible - now THERE'S a text that is so unambiguous that everyone agrees on it's interpretation. Yeah, right.
10
When thinking of legislative bodies, especially in today's hyper-partisan climate. one should be thinking in terms of the Delta fraternity in animal house. anyone who knows anything about lawmaking knows that politicians are only capable of providing general vague and broad outlines. It remains to the implementing agencies to develop the administrative code to interpret the law. This is also the point were the courts get involved.
But which of the 260 English versions of the Bible does Justice Scalia embrace?
I submit that the doctrine of judicial restraint has its roots in what is practical. The Supreme Court does not have an army and if Congress and the Executive branches ever decide that it has fundamentally gone too far, the Supreme Court would lose the power (and its prestige, as sorely diminished as it is now) to overrule legislation. Destroying Obama care would have been a very stupid thing for the Supreme Court to do, just as a former Supreme Court initially tried and then quite intelligently decided not to destroy the new deal. I think the good Chief Justice on some level understands this.
6
DUCKING Scalia ridiculed those who saw his duck hunting with Cheyney as at the very least giving the appearance of a conflict of interest. His disrespectful comment to those who disagreed with his decision was to mock them with a duck call. Dignity is not guaranteed by wearing robes. At least Roberts makes a principled attempt to follow the doctrine of stare decisis, except when violating it as suits his political scruples, as in the gutting of the 1965 Voting Act. You call that umpiring? Roberts's role of cherry picking of Constitutional interpretations, as in ignoring the 14th Amendment equal protection clause. Is that about umpiring? Federal law grants equal protection from discrimination to persons of LGBT sexual orientation. Stare decisis? Or judicial activism? The fact remains that the Founding Fathers believed that each generation would have to reinterpret the Constitution to meet the changing needs of a growing and evolving nation. They were correct to draft the language in terms of abstract principles that cannot, by definition, be interpreted by a singular original intent, since the language purposely incorporated ambiguities and dichotomies, both necessary to forge changes reflecting societal growth and change. Rather, it is those judges wearing robes who deny the stated original intent of requiring ongoing change to comply with the Constitution, are engaging in political activism. For they seek to change the true original intent of growth and change.
5
So the founders made the constitution purposely vague, filled with dichotomies and ambiguities, so that it could be interpreted any which way the wind blows? You think "Congress shall make no law ..." is vague? You obviously don't know your constitutional history, your ratification history, both, since this is all complete nonsense.
Could the author reconcile John Roberts evisceration of the Voting Rights Act with his "embrace of judicial deference to democratic decisions?" The Voting Rights Act passed the senate 98-0 and the house 390-33.
10
Scalia only favors textualism when it serves his purpose. Other times he believes in the broader purpose as he has so stated before.
Roberts is a corporate lawyer and judge. He votes for the corporation all the time regardless of the legality as do 4 other judges. He's free to use his own judgement on issues that aren't important to the corporate world.
Roberts is a corporate lawyer and judge. He votes for the corporation all the time regardless of the legality as do 4 other judges. He's free to use his own judgement on issues that aren't important to the corporate world.
5
I'm baffled how Chief Justice Roberts' concept of judicial restraint allowed him to intervene in the 2000 Presidential election in Bush v. Gore or Citizens United or the Hobby Lobby or Voting Rights cases. None of these seemed to show a shred of restraint of any kind. They were clearly activist decisions largely in support of enhanced corporate power and religious conservatism completely at odds with the hallowed principle of "stare decisis" Mr. Roberts claimed would guide him during his confirmation. They have thrown our democracy into a free-fall, perhaps even a "death spiral," that it may never fully recover from with an unnecessary war in Iraq, an economic collapse, and corporate plutocrats on the verge of buying the Congress (almost done) and now the Presidency.
5
Roberts wasn't on the Court for Bush v. Gore. He wasn't appointed until 2003.
1
Roberts was not on the Supreme Court in 2000, so he had nothing to do with Bush v. Gore.
1
Hello?! Justice Roberts wasn't even on the SCOTUS in 2001! Rehnquist was Chief Justice for Bush v. Gore!
1
Robert's is a proponent of dubious legal reasoning to achieve an end. Every decision that employs such shoddy reasoning undermines the rule of law.
2
RESTRAINT, STYLE, THUCYDIDES AND CHIEF JUSTIC ROBERTS
Of all the ways that power makes itself most manifest
the one that most impresses is restraint,
Thucydides declared, a view I won’t contest.
He never was politically a saint.
In fact he justified an unprovoked attack
on Melos, leading to the war in Sic-
ily. Because his style was great we give him slack,
although his policy was most remiss.
And yet the motivation of restraint is often based
not on men’s actions but their style,
reason less a motivation that is taste,
which helps us overlook what we revile,
condemning only what we feel we must condemn
because it violates a principle
so basic to us that we cannot hum or hem ,
compelled to treat it as invincible ,
not treating as invincible what we regard
as ignorance what leads to opposition
to views we hope opponents will discard,
applying to restraint disinhibition.
6/28/15
Of all the ways that power makes itself most manifest
the one that most impresses is restraint,
Thucydides declared, a view I won’t contest.
He never was politically a saint.
In fact he justified an unprovoked attack
on Melos, leading to the war in Sic-
ily. Because his style was great we give him slack,
although his policy was most remiss.
And yet the motivation of restraint is often based
not on men’s actions but their style,
reason less a motivation that is taste,
which helps us overlook what we revile,
condemning only what we feel we must condemn
because it violates a principle
so basic to us that we cannot hum or hem ,
compelled to treat it as invincible ,
not treating as invincible what we regard
as ignorance what leads to opposition
to views we hope opponents will discard,
applying to restraint disinhibition.
6/28/15
I am curious to know, where does Thucydides justify the Athenian attack on Melos? I am looking at the account of the Melian Dialogue in Book 5 of The Peloponnesian War and it does not read as a justification as far as I can see.
Chief Justice Roberts and the Supreme Court are wrong on everything.
Getting married is not a right but a personal choice. The benefits that any society bestows upon any segment of society or a couple are a choice too that depends on the amount of the taxes previously collected from the same society.
Letting the global corporations legally corrupt the elected representatives is equally wrong and corrupts the entire society.
The ACA ruling is wrong too. If the health care is our right, then it cannot be profitable. The rights are never profitable. The rights are the rights. It means the ACA is structurally wrong because such a health care is extremely profitable and wasteful, and two times more expensive that the comparative universal health care in the other countries that are our major economic competitors. Such an expensive health care puts us on the losing course in the competition with the other countries in the current system known as the free trade.
Free trade is an unconstitutional system. As the fellow Americans we don’t have to compete against anybody in the world that is paid the lowest possible wage. We just have to produce for our everyday needs at the wages that we as a society have agreed too.
We as the Americans don’t have to compete with the people without any human rights. It’s the losing proposition…
That’s why the SCOTUS and Chief Justice Roberts are wrong on everything…
Getting married is not a right but a personal choice. The benefits that any society bestows upon any segment of society or a couple are a choice too that depends on the amount of the taxes previously collected from the same society.
Letting the global corporations legally corrupt the elected representatives is equally wrong and corrupts the entire society.
The ACA ruling is wrong too. If the health care is our right, then it cannot be profitable. The rights are never profitable. The rights are the rights. It means the ACA is structurally wrong because such a health care is extremely profitable and wasteful, and two times more expensive that the comparative universal health care in the other countries that are our major economic competitors. Such an expensive health care puts us on the losing course in the competition with the other countries in the current system known as the free trade.
Free trade is an unconstitutional system. As the fellow Americans we don’t have to compete against anybody in the world that is paid the lowest possible wage. We just have to produce for our everyday needs at the wages that we as a society have agreed too.
We as the Americans don’t have to compete with the people without any human rights. It’s the losing proposition…
That’s why the SCOTUS and Chief Justice Roberts are wrong on everything…
3
With every presidential election, I feel that not enough consideration is given to who might be appointed to the Supreme Court. I just googled to remind myself who George H.W. Bush and George W. Bush nominated as well as other presidents. And I like Bush Sr. Yet the Bush family has nominated some of the worst, including Clarence Thomas. George W. had some weak choices in Harriet Miers and Alberto Gonzales and settled on the unimpressive Samuel Alito. His father's controversial pick of Souter as a compromise turned out to be a good moderate justice. Reagan ended up with some good appointments in Sandra Day O'Connor and Anthony Kennedy but he also nominated Scalia and Bork. Republican candidates always have to promise conservatives they will appoint very conservative justices who will overturn Roe vs. Wade. They often pick justices who are pro business, like Alito and Roberts. Some of the best justices, in my opinion, were appointed by Bill Clinton and Obama. But Reagan actually ended up with a pretty good legacy in Kennedy and O'Connor. Following the huge decisions this week, I hope the press will pay very close attention to possible Supreme Court nominations when covering the candidates. I know it is one factor I give a high priority to when I am voting.
81
Rosen's analysis will not be popular because the average citizen interprets all SCOTUS decisions through a political filter of conservative or liberal. The Court is largely populated with centrists, however, and its decisions frequently defy classification.
While upholding Texas' right to ban the Confederate flat on license plates looked left-ish, in fact that decision created new government power to restrict free speech. ACA might be Democratic triumph, but the decision was the essence of centrist conservatism in its approach to statutory interpretation.
The only major case in which the Court moved out of the centrist zone was Obergefell -- and that appears to have reflected a complete stand-off between the few rightist justices (who could not accept even a gradual elevation of marriage rights to the level of fundamental rights), and center-left justices (who apparently saw no need to compromise at all in the interest of creating a more unanimous-looking decision). It is hard to believe that the Chief Justice did not labor mightliy to build a consensus in the middle, and impossible to believe that he himself would not have joined a majority that upheld state power to refuse (a little longer) to grant SSM licenses, while upholding federal power to require state recognition of all states' marriages.
While upholding Texas' right to ban the Confederate flat on license plates looked left-ish, in fact that decision created new government power to restrict free speech. ACA might be Democratic triumph, but the decision was the essence of centrist conservatism in its approach to statutory interpretation.
The only major case in which the Court moved out of the centrist zone was Obergefell -- and that appears to have reflected a complete stand-off between the few rightist justices (who could not accept even a gradual elevation of marriage rights to the level of fundamental rights), and center-left justices (who apparently saw no need to compromise at all in the interest of creating a more unanimous-looking decision). It is hard to believe that the Chief Justice did not labor mightliy to build a consensus in the middle, and impossible to believe that he himself would not have joined a majority that upheld state power to refuse (a little longer) to grant SSM licenses, while upholding federal power to require state recognition of all states' marriages.
1
I agree wholeheartedly with the E. Reynolds comment on this article. Frankly, I couldn't get past the 2nd paragraph, in which the phrases "defer to the choices of Congress and state legislatures" and "limited institutional role of the court in relation to the president, Congress and the states" lingered in my mind.
You can't have your cake and eat it too. If Roberts votes are "consistent and constitutionally principled", then you can't defend a ruling like Citizens United. This attempt to paint the Chief Justice as deferring to the other branches of government, when he's presided over a severely flawed ruling that largely determines the outcomes of those two branches is one of the more disconnected theories about his jurisprudence (or lack thereof) that I've ever read.
You can't have your cake and eat it too. If Roberts votes are "consistent and constitutionally principled", then you can't defend a ruling like Citizens United. This attempt to paint the Chief Justice as deferring to the other branches of government, when he's presided over a severely flawed ruling that largely determines the outcomes of those two branches is one of the more disconnected theories about his jurisprudence (or lack thereof) that I've ever read.
7
When the last decision has been read from the last case argued before the Roberts Court, John Roberts will retire knowing that he was on the wrong side of history. Here is the decision in The Loving Case, the case of interracial marriage in Virginia, which was UNANIMOUSLY overturned by the Warren Court:
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
The Constitution does provide the answer in the Equal Protection clause and the Right to Life, Liberty, and Pursuit of Happiness. John Roberts would have found that if he looked!
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
The Constitution does provide the answer in the Equal Protection clause and the Right to Life, Liberty, and Pursuit of Happiness. John Roberts would have found that if he looked!
1
The Chief Justive words call for steady restraint, but his votes do not. He has written, “Under the Constitution, judges have the power to say what the law is, not what it should be.” I wonder how he reconciles this statement with his vote in Ledbetter v, Goodyear where he voted to overturn the clear intent of Congress and turned settled law 180°.
He also argues for the "restrained conception of the judicial role" in "a question the Constitution leaves to the people", but in Heller v. DC, he voted to overturn the clear will of the people in a question the court had decided several times the other way. For example, former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun as "a Fraud on the American Public."
Apparently our Chief Justice carefully distinguishes between his words and his votes.
He also argues for the "restrained conception of the judicial role" in "a question the Constitution leaves to the people", but in Heller v. DC, he voted to overturn the clear will of the people in a question the court had decided several times the other way. For example, former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun as "a Fraud on the American Public."
Apparently our Chief Justice carefully distinguishes between his words and his votes.
7
It is disingenuous of the Chief Justice to state plainly that the Constitution has nothing to say about same sex marriage and to try to leave the impression that his personal beliefs on the subject have no bearing on his determination. The issue is one of equal protection of the laws under the fifth and fourteenth amendments. Justice Kennedy made the argument well. But Chief Justice Roberts does not think that issue of same sex marriage s deserving of equal protection and therefore the constitution does not speak to it. If you find that the equal protection clause does not apply, then you need not address the question of whether equal protection has been denied. The majority clearly understood that it was an equal protection issue and that those persons seeking to be permitted to enjoy same sex marriage may not be denied it by the states because that denial does violate their equal protection rights. It's not judicial activism; it's evolution receiving the benefit of the Constitution.
And Justice Scalia's textualism disregards that we have human beings in Congress who may not always write legislation, which is invariably a product of compromise, ideally phrased. Query whether Justice Scalia would accept that his choice of words exactly states his meaning. If so, then we would all have to agree that he has devolved into a loud-mouthed bully who can brook no disagreement. A judge who cannot handle disagreement is in the wrong field of endeavor.
And Justice Scalia's textualism disregards that we have human beings in Congress who may not always write legislation, which is invariably a product of compromise, ideally phrased. Query whether Justice Scalia would accept that his choice of words exactly states his meaning. If so, then we would all have to agree that he has devolved into a loud-mouthed bully who can brook no disagreement. A judge who cannot handle disagreement is in the wrong field of endeavor.
Chief Justice Roberts is the worst Justice ever.
He is wasting the precious time on considering the trivial things. The most important judicial topic in the history of the US is whether any generation has the right to accrue the colossal debt that the future generations will have to pay off.
It’s especially problematic that such a kind of reckless behavior is not happening during the catastrophic times like the world wars or the colossal earthquakes but during the most peaceful period in the history of the world.
It means that the borrowing against our future is not necessitated by the objective reasons but by pure greed, selfishness and a lack of morality.
Technically, it’s a gigantic theft and our judicial branch is doing nothing to prevent it.
The fact that the future victims might not be born yet is not a reason to deprive them of their fundamental human rights.
Shame on you, Chief Justice Roberts!
He is wasting the precious time on considering the trivial things. The most important judicial topic in the history of the US is whether any generation has the right to accrue the colossal debt that the future generations will have to pay off.
It’s especially problematic that such a kind of reckless behavior is not happening during the catastrophic times like the world wars or the colossal earthquakes but during the most peaceful period in the history of the world.
It means that the borrowing against our future is not necessitated by the objective reasons but by pure greed, selfishness and a lack of morality.
Technically, it’s a gigantic theft and our judicial branch is doing nothing to prevent it.
The fact that the future victims might not be born yet is not a reason to deprive them of their fundamental human rights.
Shame on you, Chief Justice Roberts!
Huh?! Did I miss a monumental case involving the federal government's borrowing authority being ruled on by the Roberts Court? What has this post got to do with the topic at hand?
A deeper problem with Roberts' jurisprudence may not be so much his approach to legislative interpretation as his out of date understanding of Constitutional "liberty" and "equality".
Rosen's effort to construe Roberts' record on "judicial restraint"as consistent seems severely undermined -- as many commentators have pointed out -- by Roberts' positions regarding Presidential elections, Voting Rights, campaign finance,...
But the deeper problem is that Roberts seems to equate private property rights with liberty (and, consistently, he seems to have little interest in equality).
In Anglo-American political and legal history private property played an important role in the centuries long process of establishing personal liberty against established power. But for the past 100 years and more private property has more often been the oppressor of liberty and equality than their ally (e.g. access to public accommodations, workplace fairness, access to healthcare,...). Ironically the two "horrible example" cases cited by Roberts in his gay rights dissent (Dred Scott and Lochner) were examples of the conflation of property rights with liberty -- now seen as egregious mis-readings of the Constitution.
In Citizens United ("corporations are persons") and many other cases, Roberts appears to embrace similarly a historically outdated approach -- one that empowers the powerful and that leaves the powerless unprotected by the Constitution.
Rosen's effort to construe Roberts' record on "judicial restraint"as consistent seems severely undermined -- as many commentators have pointed out -- by Roberts' positions regarding Presidential elections, Voting Rights, campaign finance,...
But the deeper problem is that Roberts seems to equate private property rights with liberty (and, consistently, he seems to have little interest in equality).
In Anglo-American political and legal history private property played an important role in the centuries long process of establishing personal liberty against established power. But for the past 100 years and more private property has more often been the oppressor of liberty and equality than their ally (e.g. access to public accommodations, workplace fairness, access to healthcare,...). Ironically the two "horrible example" cases cited by Roberts in his gay rights dissent (Dred Scott and Lochner) were examples of the conflation of property rights with liberty -- now seen as egregious mis-readings of the Constitution.
In Citizens United ("corporations are persons") and many other cases, Roberts appears to embrace similarly a historically outdated approach -- one that empowers the powerful and that leaves the powerless unprotected by the Constitution.
1
Roberts is not an umpire applying rules, as he claimed he would be in confirmation; as Chief Justice he cares most about the historic and political reputation of "his" Court, so he votes as he thinks best for the Court's record. Both Obamacare votes and his "gay marriage" vote were political, and in claiming that the second had nothing to do with the Constitution he was trying to apologize to the right, knowing that was in the minority, for voting with the left majority on healthcare. He's a political, not a Constitutional, Chief Justice.
2
A lot of words to mask the religious conservatism of Roberts, who can't even imagine that the exclusion of same-sex marriage for millennia could have been a history case of injustice. For this kind of minds, what was before was better that anything one can imagine now.
2
If all of us are the thieves there is nobody to say that stealing is morally wrong.
It’s outrageously shameful to claim that we cannot afford to pay for our spending at the time of prolonged prosperity and economic boom.
It means this is the perfect moment to have the balanced budgets and no national debt.
There are no world wars, no natural catastrophes, no revolutions…
However, the reason why we have the ever-growing budget deficits is that there is no morality either.
We are selfish and without any willingness to control our exaggerated cravings and whims.
Saddling the future generation with our spending is morally wrong and an act of thievery.
There is no single voice of morality in our society.
Such a role should be played by our Supreme Court and Chief Justice Roberts but they are tragically AWOL…
It’s outrageously shameful to claim that we cannot afford to pay for our spending at the time of prolonged prosperity and economic boom.
It means this is the perfect moment to have the balanced budgets and no national debt.
There are no world wars, no natural catastrophes, no revolutions…
However, the reason why we have the ever-growing budget deficits is that there is no morality either.
We are selfish and without any willingness to control our exaggerated cravings and whims.
Saddling the future generation with our spending is morally wrong and an act of thievery.
There is no single voice of morality in our society.
Such a role should be played by our Supreme Court and Chief Justice Roberts but they are tragically AWOL…
Does nobody else realise what a farce it is that two huge political decisions have just been taken by a group of non-elected ideologues, the majority of whom consistently side with liberals or conservatives? In what universe is this democracy?
The role of the supreme court should be a minor one, to tease out subtle legal points and give definitive interpretations. Ideally they should do this BEFORE the laws are enacted, to avoid confusion later on as to what exactly was meant.
Instead, the supreme court has become the ultimate political power, deciding the presidential election in 2000, deciding on same-sex marriage, Affordable Health Care and many more Political questions.
And let's not delude ourselves. These are not judges struggling to understand the legal details. These are mostly convinced liberals or conservatives, chosen by presidents for precisely that reason, who decide their votes based on their political opinions and then are clever enough to be able to find "legal arguments" to support them.
The US is the only country in the world where the Supreme Court has this absurd level of power. The sooner we get rid of it, the better for democracy.
The role of the supreme court should be a minor one, to tease out subtle legal points and give definitive interpretations. Ideally they should do this BEFORE the laws are enacted, to avoid confusion later on as to what exactly was meant.
Instead, the supreme court has become the ultimate political power, deciding the presidential election in 2000, deciding on same-sex marriage, Affordable Health Care and many more Political questions.
And let's not delude ourselves. These are not judges struggling to understand the legal details. These are mostly convinced liberals or conservatives, chosen by presidents for precisely that reason, who decide their votes based on their political opinions and then are clever enough to be able to find "legal arguments" to support them.
The US is the only country in the world where the Supreme Court has this absurd level of power. The sooner we get rid of it, the better for democracy.
1
Justice Roberts said...
"Judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise neither force nor will but merely judgment."
Yet in his decision on the Voting Rights Act, he decided with his activist friend Scalia...
“not a single vote in the Senate was against (The Voting Right Act). And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable—very likely attributable—to a phenomenon that is called ‘perpetuation of racial entitlement.’ Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”
So the Supreme Court can decide the will of Congress was incorrect and that racial bigotry in the country is over, but they aren't deciding what the law should be?
Roberts, Scalia, Thomas and Alioto are politicians masquerading as jurists.
They reach conclusions based on political philosophy and backfill legal argle-bargle as necessary.
I have noticed that as logic and consistency have deserted their tattered legal philosophy, they have substituted diatribe, heat and anger for rationale discourse.
The dissent on the Court has become truly unhinged this week. What a sad spectacle and legacy.
"Judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise neither force nor will but merely judgment."
Yet in his decision on the Voting Rights Act, he decided with his activist friend Scalia...
“not a single vote in the Senate was against (The Voting Right Act). And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable—very likely attributable—to a phenomenon that is called ‘perpetuation of racial entitlement.’ Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”
So the Supreme Court can decide the will of Congress was incorrect and that racial bigotry in the country is over, but they aren't deciding what the law should be?
Roberts, Scalia, Thomas and Alioto are politicians masquerading as jurists.
They reach conclusions based on political philosophy and backfill legal argle-bargle as necessary.
I have noticed that as logic and consistency have deserted their tattered legal philosophy, they have substituted diatribe, heat and anger for rationale discourse.
The dissent on the Court has become truly unhinged this week. What a sad spectacle and legacy.
9
Re. “Whether writing for the majority or in dissent, (John Roberts) believes that judges should set aside their policy views and generally uphold laws unless they clash with clear prohibitions in the Constitution.”
John Roberts led the conservative majority of the Supreme Court in the Citizens United decision of early 2010 that destroyed the American democracy.
John Roberts led the conservative majority of the Supreme Court in the Citizens United decision of early 2010 that destroyed the American democracy.
10
I'm baffled how Chief Justice Roberts' concept of judicial restraint allowed him to intervene in the 2000 Presidential election in Bush v. Gore or Citizens United or the Hobby Lobby or Voting Rights cases. None of these seemed to show a shred of restraint of any kind. They were clearly activist decisions completely at odds with the hallowed principle of "stare decisis" Mr. Roberts claimed would guide him during his confirmation. They have thrown our democracy into a free-fall spiral that it may never fully recover from with an unnecessary war in Iraq, an economic collapse, and the plutocrats on the verge of buying the Congress (almost done) and now the Presidency.
1
It only proves that a well educated legal scholar can, and will, discover a set of arguments to support his intended goal.
This meditation on Roberts' "commitment to judicial restraint" omits just why his decision on gay marriage might have been "mocked". It certainly was not because he was being particularly restrained. " The misguided majority, he says, “orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
Uh, not Kalahari Bushmen or Aztecs? His comments make me wonder just who HE thinks we are.
Uh, not Kalahari Bushmen or Aztecs? His comments make me wonder just who HE thinks we are.
3
The favorable ruling by the Supreme Court in regard to the ACA and Gay rights does not undo the terrible damage done by the acceptance of Citizens United and Voting Rights.
Whatever we conclude about Roberts will not necessarily apply in his future votes. I wish it all could be a bit more predictable. As it now stands, I worry every time they vote.
Whatever we conclude about Roberts will not necessarily apply in his future votes. I wish it all could be a bit more predictable. As it now stands, I worry every time they vote.
1
Roberts is consistent on the principle that corporations win every single time. The others actually believe in legal theories.
1
The essential prob with the way--actually the two contradictory ways--that Antoinin Scalia reads the Constitution and the law is exactly the same essential problem that cropped up in literary criticism as far back as the 1930s.
Very generally speaking, the run-of-the-mill readings were based in biography and in a flattened version of history: critica and readers in general were spozed to find out everything they could about the author's life and immediate culture, and from there figure out what the author had had in mind when they wrote this or that.
then I.A. Richards et al came along: out went the "authorial fallacy," the "intentional fallacy," the unnamed fallacy that you needed to know some of the history to read properly. in came the notion of reading the text in total isolation, looking for its internal statements, meanings, contradictions.
The prob is, of course, that writers, writing, books, and readings don't work nothing much like any of those.
And, that those two schools of reading totally contradict one another. You can't read at all if you read in isolation; the biography and limited historicizing are worthless if you don't pay any attention to the text.
So, why's he insisting on both? Well, when you see this sort of "coherence in contradiction," what you do is ask about the underlying motives.
Very generally speaking, the run-of-the-mill readings were based in biography and in a flattened version of history: critica and readers in general were spozed to find out everything they could about the author's life and immediate culture, and from there figure out what the author had had in mind when they wrote this or that.
then I.A. Richards et al came along: out went the "authorial fallacy," the "intentional fallacy," the unnamed fallacy that you needed to know some of the history to read properly. in came the notion of reading the text in total isolation, looking for its internal statements, meanings, contradictions.
The prob is, of course, that writers, writing, books, and readings don't work nothing much like any of those.
And, that those two schools of reading totally contradict one another. You can't read at all if you read in isolation; the biography and limited historicizing are worthless if you don't pay any attention to the text.
So, why's he insisting on both? Well, when you see this sort of "coherence in contradiction," what you do is ask about the underlying motives.
To anyone who thinks that Chief Justice Roberts has a "bipartisan vision of judicial restraint," here are five words: "Citizens United" and "Voting Rights Act"
12
"Term Limits" is the real solution!
1
"...but the Chief Justice’s conception of the court’s role is entirely consistent."
I suspect it's "entirely consistent" because things worked out the way you like. But it's specious to argue that Congress could not have meant to include those four words. One of the law's key architects, Jonathan Gruber, said those words were intentionally included as a way of inducing the states to set up their own exchanges. Nobody thought so many states would nevertheless refuse, putting Obamacare in jeopardy. But under separation of powers, it was up to Congress to provide a fix. The Court could have stayed the law to give Congress time to do just that. Suppose a future Court decides that a law which raises taxes would hinder job creation, and concludes that Congress could not have intended that result - so it voids the tax increase. Same logic – but I suspect an entirely different reception in these pages.
Many comments since Friday have argued that the fact that few if any lawmakers remember anything about those four words serves to buttress Roberts's point. Nothing could be further from the truth. As Nancy Pelosi said, we have to pass the law to find out what's in it. Few if any in Congress actually read the law, so of course they don’t remember anything about those words. Does that mean they’re absolved of responsibility for their vote in favor? If this is the Supreme Court’s new policy our Democracy is in real trouble.
I suspect it's "entirely consistent" because things worked out the way you like. But it's specious to argue that Congress could not have meant to include those four words. One of the law's key architects, Jonathan Gruber, said those words were intentionally included as a way of inducing the states to set up their own exchanges. Nobody thought so many states would nevertheless refuse, putting Obamacare in jeopardy. But under separation of powers, it was up to Congress to provide a fix. The Court could have stayed the law to give Congress time to do just that. Suppose a future Court decides that a law which raises taxes would hinder job creation, and concludes that Congress could not have intended that result - so it voids the tax increase. Same logic – but I suspect an entirely different reception in these pages.
Many comments since Friday have argued that the fact that few if any lawmakers remember anything about those four words serves to buttress Roberts's point. Nothing could be further from the truth. As Nancy Pelosi said, we have to pass the law to find out what's in it. Few if any in Congress actually read the law, so of course they don’t remember anything about those words. Does that mean they’re absolved of responsibility for their vote in favor? If this is the Supreme Court’s new policy our Democracy is in real trouble.
Also true that legislatures often pass deliberately ambiguous bills in order to maintain the "plausible deniability" Ronald Reagan made such a point of. Congress intends for the court to step in and force their hand. But this time, the Court pushed back: if you don't have the votes, we won't save you.
Pierce the judicial robe and reveal the uniform of the team the umpire-justice plays for.
1
With Justice Scalia accusing conservative Chief Justice Roberts of liberal judicial activism, and considering his own unvarying support of Republican causes, we see how far to the right Scalia really is planted.
It would appear he first considers and values his own ideology.
Is this type of mind set what the Founding Fathers had in mind for our SUPREME Court?
It would appear he first considers and values his own ideology.
Is this type of mind set what the Founding Fathers had in mind for our SUPREME Court?
1
Maybe he is consistent over these two cases, but the approach of the entire court is wholly erratic.
https://spinninghugo.wordpress.com/2015/06/28/how-to-be-a-judge/
https://spinninghugo.wordpress.com/2015/06/28/how-to-be-a-judge/
Is John Roberts former President George W. Bush's Earl Warren? The balancer between the Felix Frankfurters and William Douglases? Hope so. So sweet when the intent of the political right was to recreate the Taney Court!
Roberts = umpire. As he should. Someone has to do it. Better him than anyone else.
1
This was a masterly political moves by a master politician who's only guiding principle is to promote the Republican Party and by logical extension, the Rich.
American law is gender racial ethnic sectarian colored socieconomically poltical history plus arithmetic and rhetoric. Law is neither science nor math. Law is not about logic nor justice nor morality nor humanity nor fairness nor natural law. A sports official metaphor for Chief Justice is thus most appropriate without instant replay. Holmes pointed out decades ago that the learning of the law is experience rather than logic. And that a page of history was a more valuable guide in discerning legal principles and guidance than a volume of logic.
Roberts is not making his calls in a vacuum. The game is as fixed as was the MLB 1919 World Series. Those who reign also rule the law. Internal consistency is all that matters. Being horrified by what is legal aka slavery, Jim Crow and Native genocide along with the fickle flickering uncertainty of closely divided outcomes is part tragedy and comedy. They are merely legal opinions. Opinions are like anal orifices. Every body has one and they tend to produce the same type of waste product.
Roberts is not making his calls in a vacuum. The game is as fixed as was the MLB 1919 World Series. Those who reign also rule the law. Internal consistency is all that matters. Being horrified by what is legal aka slavery, Jim Crow and Native genocide along with the fickle flickering uncertainty of closely divided outcomes is part tragedy and comedy. They are merely legal opinions. Opinions are like anal orifices. Every body has one and they tend to produce the same type of waste product.
1
Maybe Roberts is just beginning to appreciate the damage done both to our democracy and to his court's reputation by the decisions in Citizen's United, Hobby Lobby and gun "rights", among others.
The irony is that Citizen's United has substantially weakened the Republican party because they have the largest number of ideologically driven patrons. The candidates for office no longer dance to the tune played by the party establishment; they dance for Adelson, Waltons, and Kochs. I think the CIA calls this blow back.
The irony is that Citizen's United has substantially weakened the Republican party because they have the largest number of ideologically driven patrons. The candidates for office no longer dance to the tune played by the party establishment; they dance for Adelson, Waltons, and Kochs. I think the CIA calls this blow back.
5
In this politically polarized time any SCOTUS justice is automatically going to enrage half the electorate every time they render a decision. My own perception of Justice Roberts is that he decides with a conservative predisposition, but has a threshold beyond which he will not try to stretch the content of the law. I have to wonder how he would have ruled if slavery or suffrage had been brought before him in the court rather than passing through the legislature. The same-sex marriage ruling is the most definitive ruling on the separation of church and state that I have seen in my lifetime. Marriage as a legal state involved rights of property, tax privileges, and rights of survivorship. Marriage as a religious institution is an entirely distinct and separate entity. Because the legal and the religious elements have been "bundled" together for so long, many people cannot distinguish between them. The court ruled on the legal aspects, quite properly in my opinion; removing a bastion of privilege in our society. Freedom of religion will continue to allow congregations to either admit or disavow the religious validity of same-sex marriages, but not to disinherit, dispossess, or exclude LGBT couples of their equal protection under the law.
93
Thank you for your comment. I feel that the gay population successfully played a card of love and commitment to garner support for their cause, and ultimately this decision. My pragmatic side however, sees marriage as a business arrangement and the license a contract. On that basis alone, our constitution could not disallow gay marriage under equal protection clause. And yet appealing to hearts led to this momentous victory.
Marriage of a man and a women...known as Holy Matrimony...
is religious as well as legal...now
marriage of two consenting adults...is LEGAL NOW...
Do not confuse the two interpretations of Marriage
Religious Marriage is Holy Matrimony
and
Secular Marriage is not considered Holy Matrimony in any religious
context ...which I know of...and if I am mistaken...
then....What religions accept homosexual marriage as Holy Matrimony.
I think this is the juggernaut which many find hard to understand.
is religious as well as legal...now
marriage of two consenting adults...is LEGAL NOW...
Do not confuse the two interpretations of Marriage
Religious Marriage is Holy Matrimony
and
Secular Marriage is not considered Holy Matrimony in any religious
context ...which I know of...and if I am mistaken...
then....What religions accept homosexual marriage as Holy Matrimony.
I think this is the juggernaut which many find hard to understand.
Yes he is consistent. Consistently pro-business when the needs and desires of corporations conflict with right wing, he'll vote with the liberal side. No major corporations want Obamacare overturned. Despite being introduced by a liberal Democratic president, it is essentially the plan pushed by economic Republicans and big business for the past 25 years. Every big business has benefited from the lower costs and stability provided by this plan. The Business Roundtable celebrated Thursday's decision. The significant opposition to Obamacare is from right wing politicians(government health care recipients) and the Medicare recipients (single payer beneficiaries) they frighten.
5
In my opinion Anne is exactly right - John Roberts is the international corporations' representative on the Supreme Court, dedicated to doing whatever is best for big business and world capitalism. He's activist, originalist, or textualist depending on what favors his plutocratic billionaire constituency in a particular case.
1
My question regarding Roberts' dissent in the marriage decision, is whether or not he would overturn Loving v. Virginia. If, in 1968 and in some states even today, it were up to the states to decide whether people of different races could marry, I am sure a number of states would have kept their misceganation laws on the books. So should we overturn Loving v. Virginia? And before anyone says that a person does not choose what race he or she belongs to, but does choose to be gay, I would answer that there is plenty of evidence that it is not a choice to be gay, and being how gays have been marginalized and discriminated against in this country, do you really believe any sane individual would choose to suffer those indignities?
4
Except both legal philosophies need to defer to the overall goal of justice, which is what we expect from judges. Dissent as emotional and sarcastic as it has been in these cases indicates otherwise. Too bad, because by all rights, if justice prevailed in all the judges' legal thinking, unanimous decisions would have gone a long way towards uniting the country.
1
No. Constitutional law is about the constitution not what five lawyers appointed to the supreme court think is right.
Chief Judge Katzmann's criticism of Justice Scalia is misplaced. There is no inconsistency in Justice Scalia's approach. Purposivism is suited to statutory interpretation because most (although admittedly not all) statutes the Court is called upon to interpret are relatively modern and employ modern language and concepts. It does not or should not require judicial exercises to discern the legislator's intent The Constitution, being the oldest of all the statutes, employs language which does requires textualism in order to imbue it with meaning for today.
"Judicial restraint" became a joke in 2000, when the once-respected Supreme Court installed G. W. Bush as president.
11
Chief Justices are not remembered for doctrinal consistency. They are remembered for the legacy of the Court they preside over. Earl Warren was a champion of individual rights. Rehnquist moved the court in the opposite direction. To date, Roberts has presided over a court that is deeply divided and so political that its legitimacy has been questioned. If this trend continues, Roberts will be remembered as the Chief Justice who lost the Court's public support and nobody will care if his opinions on health care and gay marriage were consistent or not.
107
What should Roberts do to stop this deep division?
Legal rules of interpretations originated in the British Common Law. As a law student I learned about the literal and golden rules. I believe we in America inherited the same system. Indeed, In 2015 it's amazing to see a US. Supreme Court using the rules advocated and practiced by Justice Scalia. With such legal idiocy and infancy, maybe our final court of arbitration after the US Supreme Court should be the UK Privy Council.
I think Mr. Rosen has an unrealistic view. The Chief Justice is not some kind of middle-of-the-road legal purist. On the contrary, he is a conservative but pragmatic legal strategist. I'll explain why.
In both Obamacare decisions, Chief Justice Roberts was not the swing vote, but the sixth vote. That means the court was going to rule in Obamacare's favor, with or without Roberts. By joining the majority, Roberts could invoke one of the privileges of the Chief Justice: assign which justice gets to write the opinion. That doesn't matter much to lay people, but it matters very much to judges and lawyers.
The Supreme Court's opinions guide lower federal courts, state courts, lawyers, and government agencies on how to apply the law. So it's deeply important. A deeply liberal justice like Ginsburg is going to write an opinion that's going to be very different from one written by a conservative justice like Roberts, even if the overall ruling is the same.
It's no coincidence that Roberts assigned himself to write the opinion in King v. Burwell. In doing so, as a conservative strategist, he can "limit the damage." Leave some rhetorical room later to scale back the scope of the decision (even as far as overturning the decision for practical purposes.) Roberts is relatively young. In normal course of events, he probably has another two decades on the court. Sooner or later, it's very likely he will get enough conservative votes to roll back these cases.
In both Obamacare decisions, Chief Justice Roberts was not the swing vote, but the sixth vote. That means the court was going to rule in Obamacare's favor, with or without Roberts. By joining the majority, Roberts could invoke one of the privileges of the Chief Justice: assign which justice gets to write the opinion. That doesn't matter much to lay people, but it matters very much to judges and lawyers.
The Supreme Court's opinions guide lower federal courts, state courts, lawyers, and government agencies on how to apply the law. So it's deeply important. A deeply liberal justice like Ginsburg is going to write an opinion that's going to be very different from one written by a conservative justice like Roberts, even if the overall ruling is the same.
It's no coincidence that Roberts assigned himself to write the opinion in King v. Burwell. In doing so, as a conservative strategist, he can "limit the damage." Leave some rhetorical room later to scale back the scope of the decision (even as far as overturning the decision for practical purposes.) Roberts is relatively young. In normal course of events, he probably has another two decades on the court. Sooner or later, it's very likely he will get enough conservative votes to roll back these cases.
1
I bet you feel that way about the earlier opinion also. I did-- by limiting it to a taxation issue, I felt he had an angle. You helped me understand my misgivings.
You are right that "judicial constraint"could explain Justice Roberts opinions in these 2 cases. But to suggest that he is a principled practitioner of such restraint would explain neither the Voting Rights Act decision, nor Citizens United. Both were extreme judicial activism: overturning a near unanimous Congress extending the VRA, a law passed by the majority to protect minority rights; and undermining Congressional efforts to rein in money in politics, not to mention over a hundred years of precedent. Roberts' votes are best explained by his inverted moral compass -- he instinctively sides with the rich, the powerful, and the white majority against the poor, the weak and minorities. As Linda Greenhouse pointed out in the Times on Friday, one thing that really moved Roberts on the ACA were amicus briefs from the big money Hospital Association and from Health Economists that of the economic havoc it would play on the bottom line of the health care industry.
While the distinction between Roberts' "purposivism" and Scalia's textualism is a useful description of what they say they are doing, these are distractions from the way they behave. Both are lawless political operatives. Roberts is somewhat less radical, but Scalia is an unprincipled sophist. His "textualism" is anti-intellectual nonsense which rips language out of context and is used to mask his right-wing political ideology -- How did the text of "equal protection" explain the coup in Bush v Gore?
While the distinction between Roberts' "purposivism" and Scalia's textualism is a useful description of what they say they are doing, these are distractions from the way they behave. Both are lawless political operatives. Roberts is somewhat less radical, but Scalia is an unprincipled sophist. His "textualism" is anti-intellectual nonsense which rips language out of context and is used to mask his right-wing political ideology -- How did the text of "equal protection" explain the coup in Bush v Gore?
8
I think Mr. Rosen's view of the Chief Justice Roberts is rather idealistic and incorrect. For a much better profile, I suggest googling profile written by NYT's own Adam Liptak. Chief Justice Roberts is deeply conservative, but he also has a lot of experience as a legal strategist in government, private practice, and as a clerk of the former Chief Justice Rehnquist (another strategic-minded conservative justice.)
The Supreme Court will rarely overrule itself, but it will roll back the scope of decisions. Just look at more recent abortion cases, or affirmative cases of the late 90's and 2000's. By becoming the sixth vote with the majority, the Chief Justice can invoke his privilege of authoring the opinion himself. Roberts wrote the opinion for King v. Burwell, and he is leaving himself room to roll back the decision when he can get enough votes on the court to do it.
The Supreme Court will rarely overrule itself, but it will roll back the scope of decisions. Just look at more recent abortion cases, or affirmative cases of the late 90's and 2000's. By becoming the sixth vote with the majority, the Chief Justice can invoke his privilege of authoring the opinion himself. Roberts wrote the opinion for King v. Burwell, and he is leaving himself room to roll back the decision when he can get enough votes on the court to do it.
The picture is exactly correct. Roberts has lost all the stature that set him apart from the Ted Kennedy wannabes. He decided that words don't mean anything, so the GOP will be writing more words into bills just to make them Roberts-proof.
As an example, they'll never just say ''state'' any more. Shoot, why not just list all 50 by name every time you differentiate that level of gov't from the federal bureaucracy? The picture dictionary will always have him now, as a definition of ''craven.''
As an example, they'll never just say ''state'' any more. Shoot, why not just list all 50 by name every time you differentiate that level of gov't from the federal bureaucracy? The picture dictionary will always have him now, as a definition of ''craven.''
1
Roberts is motivated by three things and three things only - Benefits to corporations, benefits to the GOP, benefits to the .001%. Don't be fooled, his vote for the ACA is a powerful motivator for rabid anti-American Tea Party voters and will bring them out in 2016 to defeat Democrats. Above all, Roberts is a cynic who knows how to con the media into thinking he is some great objective jurist while pushing the partisan aims he learned in the Reagan DOJ.
1
I have to admit, I have been suspicious of Roberts motives all along. His upholding of ACA the first time just did not pass my "smell" test. Something is amiss with that guy.
On the issues of campaign finance laws and gay marriage, Justice Roberts has it wrong. Nothing in the logic or history of the First Amendment supports a prohibition of campaign finance laws. In my view, it would constitutional to completely ban campaign contributions (but not wise). The gay marriage decision fits squarely into the Equal Protection Clause. When that clause was being debated, opponents claimed that it would be applied to women, a claim its supporters mocked. But the Clause says "no person shall be denied equal protection of the laws". Expanding the range and categories of "persons " to be covered by the equal protection clause as society evolves is firmly based in legitimate constitutional interpretation.
1
This is hard to accept in light of Roberts' rulings that gutted Congress' campaign finance law and that gutted the Voting Rights Act which had been reauthorized by Congress in the same decade.
In his marriage dissent, Roberts stated his concern for states not yet with gay marriage without noting that the states with gay marriage already had a supermajority of the nation's population.
In his marriage dissent, Roberts stated his concern for states not yet with gay marriage without noting that the states with gay marriage already had a supermajority of the nation's population.
1
Perhaps further rulings will show Roberts to be balanced and impartial. We're not there yet. The issue of gay marriage was left to the states, and gave us a patchwork that defined these dis-United States. And when the partisan Right didn't like what elected assemblies had done, they resorted to the courts. What was Roberts to do--give the states a do-over?
Mr. Rosen's piece is a nice propaganda attempt to save John Roberts' reputation. The record shows Mr. Roberts is an activist judge who has led the court down a path of judicial ignominy. We now live in a country where corporations have religious rights that trump women's health rights; where billionaires may openly purchase politicians to serve THEIR interests, not the people's. The Roberts led court has done significant damage to our fragile democracy; damage that will take a future rational non-plutocratic SCOTUS to overturn.
12
“He compares Justice Anthony M. Kennedy’s same-sex marriage opinion to Roe v. Wade and to Lochner v. New York, a 1905 case striking down maximum hour laws for bakers, both of which he considers prime examples of judicial activism.” Does Roberts not perceive the irony in his own words that these two monumental cases actually have HELPED millions of people? Does he not even appreciate that in our democratic republic the government exists to serve the needs of the people and not vice versa?
80
Roberts consistently votes for Corporate profits over people.
So, no, he does not care about people, unless he is forced to.
So, no, he does not care about people, unless he is forced to.
You need to look up the laws before writing about them. Lochner was decided against NY. NY wanted to LIMIT the number of hours bakers were allowed to work.
Moreover, most lawyers who study constitutional law, whether they agree with Roe v. Wade or not, agree that it was a bit of a judicial reach.
The debate in some sense, is whether the court should over reach to do "good", or as Roberts says, to be an umpire.
Whether or not Roberts simply umpires or makes the rules up as he goes along, that is certainly open to debate.
Moreover, most lawyers who study constitutional law, whether they agree with Roe v. Wade or not, agree that it was a bit of a judicial reach.
The debate in some sense, is whether the court should over reach to do "good", or as Roberts says, to be an umpire.
Whether or not Roberts simply umpires or makes the rules up as he goes along, that is certainly open to debate.
1
Your comment emphasizes the common misconception about the judiciary. It is not there to be good, or to be moral, or to be helpful; it's there to interpret laws and the constitution regardless of the positive or negative outcomes of its judgments.
3
It's quite difficult to state at which point Robert's pragmatism shades into his conservative ideology.In trying to understand how he decides a case, I would argue that his own politics aside, his decisions in a large measure are motivated by his personal hopes to forge a solid legacy as chief justice. He can throw in with the supporters of ACA because he had the good sense to realize that the backlash from tossing millions to the wolves, where the Repubs had no workable alternative, would have been an indelible stain on that legacy. In his dissent on Friday, voting against same-sex marriage, was a bone tossed to his own party. To be sure, he is a conservative ideologue but also like Reagan, when it suit his ambitions, a pragmatist.
1
Justice Roberts decisions strike me as being made by a man that is closely considering his place in history. He does not want to be seen as being on the wrong side of it. Where it is possible, he is an "experimentalist" as with the case of Citizen United.
His court was not the first to advance "person hood" for corporations. It remains to be seen where this leads. So far the Court has upheld rights for corporations but not civil responsibilities. I would hope that future courts take up this issue. We have in the US multiple "entities": citizens, states, "groups", classes, and now, properly, corporations.
We have seen Justices change and emerge as impressive legal minds. The conservative Justices Alito, Scalia, and Thomas are not, and will never be in that pantheon, but Justice Roberts might just someday quality.
His court was not the first to advance "person hood" for corporations. It remains to be seen where this leads. So far the Court has upheld rights for corporations but not civil responsibilities. I would hope that future courts take up this issue. We have in the US multiple "entities": citizens, states, "groups", classes, and now, properly, corporations.
We have seen Justices change and emerge as impressive legal minds. The conservative Justices Alito, Scalia, and Thomas are not, and will never be in that pantheon, but Justice Roberts might just someday quality.
Roberts did the right thing in King v Burwell. Holding for plaintiffs would have destroyed the legitimacy of the Supreme Court as an institution. Plaintiffs' case never should have been heard. That said, it's a long way from there to nodding approvingly at Roberts' purported judicial restraint. Shelby County is Exhibit A for his lack of restraint.
Chief Justice Roberts said the justices in the majority "enacted their own vision of marriage as a matter of constitutional law" and "is an act of will, not legal judgment" with no basis in the Constitution. Justices Scalia, Thomas and Alito made similar comments. However, I agree with Professor Geoffrey Stone of the University of Chicago, who said: ""Assertions of this sort might be warranted if they were made by justices who actually believed in the principle of judicial restraint...but these four justices, for example, have embraced and defended aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws regulating campaign expenditures and contributions; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws permitting affirmative action programs; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws regulating the availability of guns in our society...including wholly unconstitutional laws protecting voting rights of racial minorities...and racial integration in society." The list goes on and on. I agree with Stone, who says the four justices engaged in unabashed judicial activism and that they enforced "unambiguously conservative political beliefs." "In short, these four justices are not in any principled way committed to the principle of judicial restraint."
7
I clearly recall Roberts' facile analogy of a judge's role to that of an umpire during his Senate confirmation hearings, for two reasons: 1) to dress up his right-wing legal orientation in the sheep's clothing of supposed neutralism, and 2) because I was astounded that no Senator called him on the fact that his disingenuous claim of studious neutrality is revealed as laughable to anyone who's taken a Psych 101 course. He was not chosen by Bush and Cheney because he has middle-of-the-road legal and political philosophies, and the great pains he took to paint himself as a moderate did nothing but reveal him to be yet another ideologically-ambitious dissembler.
69
"Instead (Roberts) was advancing the view that he championed soon after his confirmation: In a polarized age, it is important for the Supreme Court to maintain its institutional legitimacy by deferring to the political branches."
Really? It's been reported that Roberts was opposed to reauthorizing the Voting Rights Act as a lawyer in the first Reagan administration. Years later, while ignoring reams of evidence that supported the continuing need for it, and pointing to Obama's election as proof that the bad old days are over, he invented a brand new constitutional doctrine, the "fundamental principle of equal sovereignty" among the states, to justify gutting it.
Really? It's been reported that Roberts was opposed to reauthorizing the Voting Rights Act as a lawyer in the first Reagan administration. Years later, while ignoring reams of evidence that supported the continuing need for it, and pointing to Obama's election as proof that the bad old days are over, he invented a brand new constitutional doctrine, the "fundamental principle of equal sovereignty" among the states, to justify gutting it.
10
I agree with your analysis of these two decisions. But that same analysis does not fit Robert's support of the decision to ignore Congress and throw out the preclearance requirement of the Voting Rights Act, or finding that for profit corporations, persons only by dint of legal fiction, have religious convictions in the Hobby Lobby decision. Nor does it explain the inexplicable and ghastly Citizens United decision.
4
What are John Roberts' real motives.......I am not commenting on the
the decisions....but on John Roberts, himself...such motivations seem
to be transparently ....politically motivated...and not issued from
a valid conscientious decision...
viz a viz...the horrendous Citizens United....which would exclude so many
US Citizens...(regardless of what sexual orientation...or religious conviction..
or any diverse origin....in other words restriction of voters...)..
I just do not take Roberts seriously ...not at all..
the decisions....but on John Roberts, himself...such motivations seem
to be transparently ....politically motivated...and not issued from
a valid conscientious decision...
viz a viz...the horrendous Citizens United....which would exclude so many
US Citizens...(regardless of what sexual orientation...or religious conviction..
or any diverse origin....in other words restriction of voters...)..
I just do not take Roberts seriously ...not at all..
1
If we are to find a common thread in Roberts' opinions, it isn't judicial restraint - that's belied by eviscerating the Voting Rights Act and by Citizens United.
Here are two more plausible explanations for his opinions on Obamacare and marriage equality:
1) Chief Justice Roberts rescued the Republican Party that had painted itself into a corner. The Republicans had no solution to the loss of health coverage by millions of Americans if Obamacare were destroyed, and they were clearly on the wrong side of popular opinion with regard to marriage equality. The Court did them a favor by taking both issues off the table.
2) Chief Justice Roberts responded to the wishes of the corporate interests that he has consistently favored. Big business benefits from Obamacare, and the healthcare and insurance industries benefit especially; Roberts quoted from their amicus curiae briefs. And big business - even Walmart - has loudly supported same-sex marriage.
The conservative wing of the Supreme Court has made a mockery of the concept of judicial restraint, but they have done a good job of serving the Republican party and its adherents.
Here are two more plausible explanations for his opinions on Obamacare and marriage equality:
1) Chief Justice Roberts rescued the Republican Party that had painted itself into a corner. The Republicans had no solution to the loss of health coverage by millions of Americans if Obamacare were destroyed, and they were clearly on the wrong side of popular opinion with regard to marriage equality. The Court did them a favor by taking both issues off the table.
2) Chief Justice Roberts responded to the wishes of the corporate interests that he has consistently favored. Big business benefits from Obamacare, and the healthcare and insurance industries benefit especially; Roberts quoted from their amicus curiae briefs. And big business - even Walmart - has loudly supported same-sex marriage.
The conservative wing of the Supreme Court has made a mockery of the concept of judicial restraint, but they have done a good job of serving the Republican party and its adherents.
1
The fourteenth amendment requires states to provide equal protection of the laws to all persons subject to their jurisdiction. Yet Roberts managed to find the Constitution has "nothing to do" with overturning the starkly unequal protection afforded by the laws in many states to gay couples desiring to marry. He could declare this so glibly, I suppose, because he is an umpire and the challenge to those laws was a ball. Because he said so. Fortunately, on further review, his call didn't stand.
"In fact, the chief justice’s votes in both cases were entirely consistent and constitutionally principled."
Or you could say Chief Justice Roberts is a fiscal liberal and a social conservative. That would be news.
Or you could say Chief Justice Roberts is a fiscal liberal and a social conservative. That would be news.
Roberts' consistency is on behalf of big business. The healthcare and insurance industries were committed to Obamacare and expected to make big money from it. On both occasions when the law was up for review their stocks lagged, but shot up when the Court did not kill it. Roberts voted to extend the "free-speech rights" and personhood of corporations - that is certainly activism (the Founders had no idea of such a role for corporations).
11
I'd agree with this entirely. In both these cases Roberts' position was the absolute reverse of judicial activism. It was interesting that in the run up to these decisions popular wisdom suggested more uncertainty about the outcome of the Obamacare subsidies case than the gay marriage one. In fact on the merits King v Burwell was a slam dunk because the challengers case was preposterous. There was absolutely no doubt about the intent of the law despite some poor drafting of that little bit of language and only deeply politically motivated supreme court justices were likely to think otherwise. Scalia uses textualism when it suits him but, as Roberts and numerous other lawyers have pointed out, there are many previous cases where he has insisted that the overall intent of the law is what determines its legality. Au fond Scalia is a hack. The events of the last week represent just the latest steps in the destruction of a reputation that once stood quite high as a credible jurist.
8
Just because both the Afordable Care Act and the Marriage Equality vote by SOTUS was either right or left does not make it comparable because both are not. They are more left than right. The reason why they are? Because they cater to the majority of the population and Chief Justice Roberts along with those he voted with and those he voted against of the other eight chief justice's makes it a comparable outcome because they are not the same. Health Care is a right and Marriage between LGBT couples is not because it is a choice the same with hetrosexual couples. Health Care is not a choice. But both are considered a God given right. Even if God does not judge he does take away from Adam and Eve in the Bible the Garden of Eden. And if Planet Earth is that Garden then those living under the laws are the only ones in judgement not the other way around where God is judged. The Supreme Court may judge but it is the people in the United States that answers to a higher calling and SOTUS is the intermediary. Not even Pope Francis or past Popes of the Catholic Church would disagree with this outcome if they knew better.
2
The majority of the population does not receive subsidies under the ACA, nor does current polling suggest that the majority approves of the healthcare law. I happen to, but don't see how your assertion about "the majority" stands here.
Sorry, but I can't buy the argument that Chief Justice Roberts is simply the personification of balls-and-strikes judicial restraint. I'm not sure I'd agree with Prof. Rosen's theory of a benign, consistent Chief Justice in any event, but it might be easier to do so if Roberts hadn't been part of the majority that went out of its way -- by having the case re-argued, and by adding as an issue the constitutionality of a section of McCain-Feingold, even though the plaintiffs had abandoned that claim -- to overturn precedent and decide Citizens United as broadly as possible.
60
He also severely constrained the breadth of the Spending Clause by striking down the Medicaid expansion provisions of the ACA in Obamacare I and appears to have taken a whack at the Chevron doctrine that requires the court to defer statutory interpretation to administrative agencies. Those are both significant judicial power grabs.
Rubbish! His lack of understanding the phrase " a well regulated militia" shows he has an agenda. Also in the case Loving vs Virginia (1967), laws prohibiting interracial marriage were invalidated, and that case is exactly equivalent to the gay marriage case. That fact that Roberts denies this is amazing.
Face it, the Supreme Court has a problem with RATS, Roberts, Alito, Thomas and Scalia.
Face it, the Supreme Court has a problem with RATS, Roberts, Alito, Thomas and Scalia.
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If we had gotten Bork instead of uncle Clarence all out comes would have been the same except president Obama would now have another appointment.
1
GREAT acronym. Let's repeat it often.
The author is disingenuous when he writes that John Roberts' "...passions were engaged by his commitment to the court’s limited role in American politics" and assumes that the readers are either naive, uninformed or stupid.
Citizens United presented the Court with a narrow issue that the Court's conservative activist majority -- led by Roberts -- subsequently re-configured in order to completely eviscerate the country's campaign finance laws and a century of judicial precedent.
Furthermore, Roberts' screechy dissent in the Obergefell marriage case reveals his misunderstanding of what it means to be a Constitutional Democracy and also what a truly petulant loser he is when he cannot force his colleagues to bend to his conservative ideological agenda.
Citizens United presented the Court with a narrow issue that the Court's conservative activist majority -- led by Roberts -- subsequently re-configured in order to completely eviscerate the country's campaign finance laws and a century of judicial precedent.
Furthermore, Roberts' screechy dissent in the Obergefell marriage case reveals his misunderstanding of what it means to be a Constitutional Democracy and also what a truly petulant loser he is when he cannot force his colleagues to bend to his conservative ideological agenda.
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Maybe it's because on Roberts exalted level, and it is exalted, one has to transcend politics, and that is to "reach on out there"...
I'll bow to criticism of my wording...
Somebody help me out here.
I'll bow to criticism of my wording...
Somebody help me out here.
Legally, Rosen is off, slighly, on one point, and it was important, rhetorically. Rosen states, "he concluded that no clause of the Constitution clearly protected a right of marriage equality." Not true. The issue for Roberts is that there is no Constitutional clause that says the Court has an ability to define what a marriage is.
It's a slight difference, and Rosen's comment may be taken as including that issue, but Rosen's comemnt may also be taken more broadly that he did not agree the Constitution supported the right to marry--a position Roberts does not take.
It's a slight difference, and Rosen's comment may be taken as including that issue, but Rosen's comemnt may also be taken more broadly that he did not agree the Constitution supported the right to marry--a position Roberts does not take.
1
Justice Scalia is neither a textualist nor an originalist. He is a Republican who will vote the Republican party line and give himself a fancy "ist" word to hide the fact that whatever the facts of a case or the merits of an argument he will vote for the republican talking point without regard to logic or the law. I don't always agree with Chief Justice Roberts but he has shown a willingness to listen to reason and to, sometimes, surprise. Justice Scalia on the other hand, doesn't even have to show up for work anymore. I can tell you where he will come down on a subject by simply listening to FOX news. If anything, he's a FOXist.
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Yes. And, you can add Thomas and Alito and, most of the time, Roberts to this argument. Hmm...to be equitable, maybe we should add Ginsberg, Kagan, Sotomayor and Breyer as anti-FOXists. Maybe Kennedy, though mostly conservative, is the only justice who does not vote his ideology.
Very true, Rick. In Heller, somehow this originalist or textualist chose to completely ignore the opening, controlling clause of one of the Bill of Rights, to wit: "a well regulated militia being necessary to the security of a free state..."
You give him too much credit. There is no judicial restraint in getting rid of campaign finance laws. There is nothing in the constitution that says that a corporation is a person or that says anyone can buy as much freedom of speech as he wants. These are manufactured interpretations by right wing partisan judges and Justice Roberts is as partisan as they make them. And we have not even talked about the 2000 elections
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Roberts wishes to be president I think. Certainly young enough. Decisions are made to curry support in the future. Deciding to end Obamacare would be a loser for him down the road, while his stand on gay marriage will provide
reliable conservative base to run from. And of course there are all those wealthy CEO's.
reliable conservative base to run from. And of course there are all those wealthy CEO's.
1
Agreed, except that Roberts was not on that infamous 2000 SCOTUS. He was appointed by W.
1
The 2000 election was a different chief justice.
This article read like a public relations piece for Roberts. The author is so absorbed in esoteric legal principles, it seems that he is incapable of seeing John Roberts in a political context. In that context, based on his voting record and his explanations for his decisions, its clear that Roberts cherry picks legal points to suit his ideology. After the gay marriage decision, he said the Constitution had nothing to say on the subject. Further, he tried to justify his stance based on the history of marriage tradition, even including the Aztecs. (He failed to mention that the Aztecs had some pretty bloody traditions, such as human sacrifices.) Although he had earlier overreached and found Constitutional justification for protecting corporations and declaring that they are people, he disregarded the Fourteenth Amendment
and found that there was no equal- rights protection for gays. If the decision proves anything, it's that Alito, Thomas, Scalia and Roberts are transparent, right-wing ideologues who are incapable of making objective judicial decisions. They have identified themselves as the Supreme Court Tea Party and have permanently damaged the reputation of the court.
and found that there was no equal- rights protection for gays. If the decision proves anything, it's that Alito, Thomas, Scalia and Roberts are transparent, right-wing ideologues who are incapable of making objective judicial decisions. They have identified themselves as the Supreme Court Tea Party and have permanently damaged the reputation of the court.
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Perhaps others are so absorbed in viewing Justice Roberts through their own political prisms that they cannot appreciate the legal interpretation Rosen offers? We need to be able to see and appreciate both perspectives, but while the legal one offers more grounding in fact, the political one does so in opinion.
REMEMBER WHEN IKE APPOINTED GOV. EARL WARREN TO SCOTUS? . . .
He was chosen by President Eisenhower because he was thought to be a conservative ... and look what happened. Many right wingers wanted Warren impeached. Remember?
This pattern is not unusual for the U. S. Supreme Court where appointees often change once they are members of the court for a period of time.
He was chosen by President Eisenhower because he was thought to be a conservative ... and look what happened. Many right wingers wanted Warren impeached. Remember?
This pattern is not unusual for the U. S. Supreme Court where appointees often change once they are members of the court for a period of time.
3
Yet no one can come up with a liberal that morphed into a constitution-lover interested in not growing the government. The change only goes one way.
Of course, if selling yourself out to get invited to all the right parties and social clubs and tea with the so-and-so's, isn't that more important than the fate of the country?
Of course, if selling yourself out to get invited to all the right parties and social clubs and tea with the so-and-so's, isn't that more important than the fate of the country?
1
Nice try, Mr. Rosen, but no cigar.
Roberts very specifically stated that marriage should be left to the states. If so, how does he avoid at least the appearance that the Court overstepped in Loving v. Virginia? And if THAT is so, how does he square that with the fact that such a reading would happen to invalidate the marriage of one of the most relentlessly conservative Justices?
And now that it has been a decade since he has ascended, one can NOT just look at a couple of opinions this week and make a flat statement about judicial modesty. In fact, Roberts is guilty of perhaps the most immodest move in Supreme Court history. In the original Citizens United case, the court took up the question of whether an attack mockumentary of Hillary Clinton was protected speech. While issuing the ruling that it was protected speech, Chief Justice Roberts did the unprecedented, and in issuing the ruling, solicited the arguing parties to take up an entirely unasked and unrelated question, about whether *money* was equivalent to speech in order to invalidate the McCain-Feingold campaign finance law.
If anyone can cite another example of a Chief Justice soliciting a case from the bench far outside of the normal certiorari process, please edify me. Unlike the baseball umpire analogy he used during his confirmation hearings, this was a case where, the baseball game concluded, the Chief Justice solicited the litigants to play a cricket test match. Not modest, as far as I'm concerned.
Roberts very specifically stated that marriage should be left to the states. If so, how does he avoid at least the appearance that the Court overstepped in Loving v. Virginia? And if THAT is so, how does he square that with the fact that such a reading would happen to invalidate the marriage of one of the most relentlessly conservative Justices?
And now that it has been a decade since he has ascended, one can NOT just look at a couple of opinions this week and make a flat statement about judicial modesty. In fact, Roberts is guilty of perhaps the most immodest move in Supreme Court history. In the original Citizens United case, the court took up the question of whether an attack mockumentary of Hillary Clinton was protected speech. While issuing the ruling that it was protected speech, Chief Justice Roberts did the unprecedented, and in issuing the ruling, solicited the arguing parties to take up an entirely unasked and unrelated question, about whether *money* was equivalent to speech in order to invalidate the McCain-Feingold campaign finance law.
If anyone can cite another example of a Chief Justice soliciting a case from the bench far outside of the normal certiorari process, please edify me. Unlike the baseball umpire analogy he used during his confirmation hearings, this was a case where, the baseball game concluded, the Chief Justice solicited the litigants to play a cricket test match. Not modest, as far as I'm concerned.
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Well said.
1
I would think that Roberts's answer would be that interracial marriage does not constitute an extension of, or change in, the very concept or definition of marriage, whereas same-sex marriage does.
Once the concept or definition has been extended, it seems apparent in hindsight that equal protection has been denied. But that it should look that way to us is itself a consequence of the change in view. I think Roberts, rightly or wrongly, thought that the states should be where that redefinition ought to get worked out.
Once the concept or definition has been extended, it seems apparent in hindsight that equal protection has been denied. But that it should look that way to us is itself a consequence of the change in view. I think Roberts, rightly or wrongly, thought that the states should be where that redefinition ought to get worked out.
I have a different view, at least as regards the health care decisions.
The June 25 ACA opinion of Chief Justice Roberts, as the Chief Justice’s ACA opinion three years ago, is the result of a campaign by Barack Obama to coerce and intimidate the Chief Justice that began in 2010 when the Supreme Court decided Citizens Union. One need only remember the start of that campaign: the attack by the president on the Supreme Court in his 2010 State of the Union address, with the justices sitting directly in front of him. Even Justice Ginsburg flinched at the unseemliness of that attack. Bottom line. It worked. Not once, but twice.
The June 25 ACA opinion of Chief Justice Roberts, as the Chief Justice’s ACA opinion three years ago, is the result of a campaign by Barack Obama to coerce and intimidate the Chief Justice that began in 2010 when the Supreme Court decided Citizens Union. One need only remember the start of that campaign: the attack by the president on the Supreme Court in his 2010 State of the Union address, with the justices sitting directly in front of him. Even Justice Ginsburg flinched at the unseemliness of that attack. Bottom line. It worked. Not once, but twice.
Right. Obama, coerced and intimidated Roberts!
Every time I think I've heard it all....
Every time I think I've heard it all....
Nice try. But Citizens United and many other decisions demonstrate beyond a doubt that, except for the ACA, Roberts is a Republican operative in judicial robes.
49
"Five lawyers closed the debate and enacted their own vision of marriage." It would seem to me that the Chief Justice overlooked the 14th Amendment's equal protection clause. Citizens have every right to statutory protection. Given the cultural hostility toward same-sex relationships, the courts are these people's first and last refuge for protection from the tyranny of the majority. Dignity is not guaranteed in the Constitution, but Justice Kennedy won the day for the plaintiffs by asserting that they are no less invested in the institution of marriage than heterosexual couples. His majority opinion affirmed their right to the sacrament of marriage and the dignity of American citizenship. The arguments for or against "purposivism" or "textualism" may go on forever, but human life does not. Cannot a citizen reasonably expect a hearing about a grievance without robed justices being forever closeted in their chambers debating the abstruse points of legal principles that bring little or nothing to bear upon the matter at hand? No one counsels precipitate, rash decisions, but consider the harm done to a plaintiff who claims an injury but must wait until common sense and protection carry the day or legal texts are made thicker by some logic that may never again be applied. The Supreme Court is a political institution; otherwise Justice Scalia's shifting legal interpretations would not result in his being personally offended at having to angrily carve out dissents dipped in acid.
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No, I don't believe you are right about SCOTUS. SCOTUS is political, part of the government, appointed, etc., but we intend that SCOTUS be the least political, I think. That's the set up as I understand it, and I applaud Justice Roberts for attempting to allow the Legislature to rule the day while balancing that function with the attempt to uphold minority rights (the non-democratic aspect of our republic). Please send us more chief justices against judicial activism.
5
There is NO RIGHT OF SACREMENT in the law just past for same sex
couples to be legally partnered...or bound...known as same sex marriage.
this is not a sacrament...but a legal bond...only....
couples to be legally partnered...or bound...known as same sex marriage.
this is not a sacrament...but a legal bond...only....
This is the umpire who invented religious personhood for corporations but couldn't accept the deletion of gender-narrowing adjectives from marriage. This is the umpire who was willing to overthrow on civil rights grounds two hundred years of precedent on the second amendment while overthrowing voter protections because racism has ended. The man who finds money is speech but that the ability to register to vote is unimportant.
He is an umpire ruling from the sky boxes of the 1% with the blindness of that distance.
He is an umpire ruling from the sky boxes of the 1% with the blindness of that distance.
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Judges are supposed to strike down statutes that violate the Constitution and not to exercise judicial restraint in such instances. If statutes that ban interracial marriage are unconstitutional, then statutes that ban same-sex marriages are. Neither type of statute has any valid argument to support it; both are products of bigotry. Roberts dissent was nothing but an expression of bigotry.
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Wrong. The two cases are different and that difference is supported by biology. Perhaps you skipped that class too many times. Interracial couples can marry, mate, and produce offspring; homosexual couples cannot. Homosexual marriage is not equivalent to heterosexual marriage no matter what the racial heritage of the participants.
Sounds like incredibly wishful thinking from Mr. Rosen.
47
It’s like we’re watching five old men atop the Kremlin in 1980 on May Day, reviewing the soldiers and missiles passing far below on parade; and wondering who will die next, who will take his place, and whether the replacement will be as crazy as the replaced.
The simple truth is that all NINE of our Supreme Court justices are wedded to their policy preferences, as federal judges always have been. The one stand-out is John Roberts, who overcomes those policy preferences when he senses that the credibility of his court could suffer if a ruling comes down one way as opposed to another. It’s all right if the most unchained among the liberati disagree with Citizens United when the ruling is as well-grounded as that one was in our jurisprudential history and when so few Americans really care. It’s quite another when the issue is ObamaCare, a hot potato he doesn’t want to touch at ANY price. Any why should he? THAT mess is Congress’s. Let THEM fix it.
As to gay marriage, he’s back with his policy preferences, because a large number of Americans if not a majority disagrees with the court’s majority. Fortunately, Kennedy was there to force us to cease excluding a whole class of Americans from exercise of a right all other Americans exercise at will.
Everyone else, including Kennedy, votes his or her conscience at ALL times. The only Richelieu on the Court at present is its Chief Justice. For the continued relevance of the U.S. Supreme Court, thank heavens for John Roberts.
The simple truth is that all NINE of our Supreme Court justices are wedded to their policy preferences, as federal judges always have been. The one stand-out is John Roberts, who overcomes those policy preferences when he senses that the credibility of his court could suffer if a ruling comes down one way as opposed to another. It’s all right if the most unchained among the liberati disagree with Citizens United when the ruling is as well-grounded as that one was in our jurisprudential history and when so few Americans really care. It’s quite another when the issue is ObamaCare, a hot potato he doesn’t want to touch at ANY price. Any why should he? THAT mess is Congress’s. Let THEM fix it.
As to gay marriage, he’s back with his policy preferences, because a large number of Americans if not a majority disagrees with the court’s majority. Fortunately, Kennedy was there to force us to cease excluding a whole class of Americans from exercise of a right all other Americans exercise at will.
Everyone else, including Kennedy, votes his or her conscience at ALL times. The only Richelieu on the Court at present is its Chief Justice. For the continued relevance of the U.S. Supreme Court, thank heavens for John Roberts.
4
I was greatly disappointed by Roberts's dissent in the marriage case Friday. However, I did appreciate reading this explanation of his thinking and decision-making process. It's not my way of interpreting things, but I can say I respect his line of reasoning...unlike some others on the court.
I am just thankful for the 5 justices who thought otherwise, especially Justice Kennedy for his very eloquent and uplifting majority decision. It was almost spiritual -- which is precisely what marriage is about.
I am just thankful for the 5 justices who thought otherwise, especially Justice Kennedy for his very eloquent and uplifting majority decision. It was almost spiritual -- which is precisely what marriage is about.
1
Mr. Rosen writes
"The chief justice’s commitment to judicial restraint and a limited conception of the court’s institutional role is not unvarying. He has written or joined opinions striking down federal campaign finance laws and voting rights laws."
To paraphrase the dissent of Justice Scalia in Burwell, understatement, thy name is stating the commitment of the Chief Justice to judicial restraint is not "unvarying."
Mr. Rosen further writes
"In all of these cases, however, Chief Justice Roberts identified a particular clause of the Constitution — the First Amendment, the Fifth Amendment or the 14th Amendment — that he believed invalidated the federal law in question."
Of course Justice Kennedy identified the 14th Amendment as supporting his opinion in Obergefell and other Justices also cite the Constitution to support their holdings. It just so happens that the Chief Justice prefers to use his reading of the Constitution to invalidate laws that protect voting rights and restrict corporate campaign corporations.
When it suits his purposes the Chief Justice can be quite the judicial activist in overturning legislation and rejecting Supreme Court precedent.
"The chief justice’s commitment to judicial restraint and a limited conception of the court’s institutional role is not unvarying. He has written or joined opinions striking down federal campaign finance laws and voting rights laws."
To paraphrase the dissent of Justice Scalia in Burwell, understatement, thy name is stating the commitment of the Chief Justice to judicial restraint is not "unvarying."
Mr. Rosen further writes
"In all of these cases, however, Chief Justice Roberts identified a particular clause of the Constitution — the First Amendment, the Fifth Amendment or the 14th Amendment — that he believed invalidated the federal law in question."
Of course Justice Kennedy identified the 14th Amendment as supporting his opinion in Obergefell and other Justices also cite the Constitution to support their holdings. It just so happens that the Chief Justice prefers to use his reading of the Constitution to invalidate laws that protect voting rights and restrict corporate campaign corporations.
When it suits his purposes the Chief Justice can be quite the judicial activist in overturning legislation and rejecting Supreme Court precedent.
28
Amen, Mr. Eisenberg. But Chief Justice Roberts still has some heart. What about Justice Scalia. He never had one to begin with. Look who's talking! Justice Scalia says the discouraging truth that the Supreme Court of the United States favors some laws over others and upholds and assists it's favorites. Who else could recognize this better than him? He is such a sore loser. His acerbic prose gets even more acerbic - not very conducive to maintaining the enshrined Court's decorum.
13
I've read Justice Scalia's books. It is important to remember that Justice Scalia plays an important role. He has motivated me to ponder certain tensions in British/American constituitonal law. Still, constituional law is not religious fundamentalism. The Founding Fathers were not ideologues. Their private letters reveal some skepticism concerning how long the experiment might last in the real world. They could no more guess at many of our mores and values than I can guess what the future may hold. Certain principles and values endure. Some flexibilty when facing legal problems is needed. Facts are different. Society changes with technology and world events. It was reasonable to believe that one day the United States of America might reach to the West coast. A man landing on the ma n or a descendent of an Afircan man being the president of the United States are different matters. Otherwise, the Magna Carta and U.S. Constitution would not be necessary. The text of the Ten Commandments could just be used.
Hate Lefty activist judges.
Destroying our personal rights!
Roberts is worthless!
Destroying our personal rights!
Roberts is worthless!
The problem with “purposism” is that it holds that a Court may rewrite a law, contrary to the plain meaning of the words actually used. This reminds one of the old Monty Python sketch: “my name is spelled Luxury Yacht, but it’s pronounced Throatwarbler Mangrove.”
When the Legislature uses language, it presumably writes the King’s English and means precisely what it says. It’s the very definition of a judicial putsch for a court to assert the authority to ignore what Congress actually said and, instead, “interpret” the law to mean what the Court concludes the people actually elected to write the law must really have meant. Arrogance is far to tame a word to describe a court which acts like a roving editorial board, “correcting” what it believes to be legislative mistakes.
It is not “deference to democratic decisions” to ignore what Congress actually wrote in favor of what you believe it really meant. It represents the crystal ball/divination theory of adjudication: peering at tea leaves to discern secret meanings in words which simply can’t bear the strain.
We already have four leftist make-it-up-as-we-go-along politicians on the court, the votes of which reliably track whatever the Democratic platform says. We needed an ump to take the law as Congress actually writes it, not impose a law they didn’t actually write. Unfortunately, he ruled that the rules may SAY that a ball over the plate is a strike, but that's not what he thinks they really meant.
When the Legislature uses language, it presumably writes the King’s English and means precisely what it says. It’s the very definition of a judicial putsch for a court to assert the authority to ignore what Congress actually said and, instead, “interpret” the law to mean what the Court concludes the people actually elected to write the law must really have meant. Arrogance is far to tame a word to describe a court which acts like a roving editorial board, “correcting” what it believes to be legislative mistakes.
It is not “deference to democratic decisions” to ignore what Congress actually wrote in favor of what you believe it really meant. It represents the crystal ball/divination theory of adjudication: peering at tea leaves to discern secret meanings in words which simply can’t bear the strain.
We already have four leftist make-it-up-as-we-go-along politicians on the court, the votes of which reliably track whatever the Democratic platform says. We needed an ump to take the law as Congress actually writes it, not impose a law they didn’t actually write. Unfortunately, he ruled that the rules may SAY that a ball over the plate is a strike, but that's not what he thinks they really meant.
1
John Roberts is viewed as a Supreme Disappointment by traditional Roman Catholics. There was so much hope and promise when Roberts was elevated to the Supreme Court but after a few years the real betrayals began to be seen.
Chief Justice Roberts has engaged in detente with the world as he tries to placate disparate parts of the culture. His multi-directional decisions evince and depict a judge without real foundations and without real core beliefs.
Chief Justice Roberts has engaged in detente with the world as he tries to placate disparate parts of the culture. His multi-directional decisions evince and depict a judge without real foundations and without real core beliefs.
1
Two points: first, as a citizen/lawyer, I find it appalling how the American body politic thinks nothing more of the Supreme Court than it would of an online poll: pick an issue, vote, and see whether your opinion puts you in the majority (or minority). Second, the three other justices who dissented in the same-sex marriage case cited constitutional grounds that were essentially the same as those cited by the Chief Justice, whose position Rosen labels "constitutionally principled." Are Scalia, Alito and Thomas less principled than Roberts (either generally or on same-sex marriage) because they dissented on this week's "ObamaCare" ruling? Purposivism and textualism often lead to the same place.
I think Roberts wants to play it down the middle, just like Justice Kennedy. They are moderating influences on the conservative and liberal justices, who are much more politically aligned.
Pshaw.
Roberts had no problem striking down the heart of the Voting Rights Act, enacted by Congress and reauthorized and extended four times.
He voted to strike down duly enacted federal and state laws restricting the Koch's of our world from buying elections in Citizens United and McCutcheon.
He voted to empower religious mumbo jumbo, in boldface contravention of the separation of church and state, in Hobby Lobby.
None of the above are conservative, strict constructionist or adhere to legislative or original intent.
Roberts had no problem striking down the heart of the Voting Rights Act, enacted by Congress and reauthorized and extended four times.
He voted to strike down duly enacted federal and state laws restricting the Koch's of our world from buying elections in Citizens United and McCutcheon.
He voted to empower religious mumbo jumbo, in boldface contravention of the separation of church and state, in Hobby Lobby.
None of the above are conservative, strict constructionist or adhere to legislative or original intent.
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"He has enraged both the left and the right, but the chief justice’s conception of the court’s role is entirely consistent."
Nothing could be further from the truth. Roberts said, of the gay marriage ruling, ""If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
You mean...like considering corporations "people?" (which Roberts agrees with). Or maybe you mean like turning the four brief,, tortured, archaic sentence fragments of the Second Amendment into a wholesale right to own an Uzi?
Consistent? If anything, Roberts has shown LESS consistency in his positions than almost any of his colleagues.
Nothing could be further from the truth. Roberts said, of the gay marriage ruling, ""If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
You mean...like considering corporations "people?" (which Roberts agrees with). Or maybe you mean like turning the four brief,, tortured, archaic sentence fragments of the Second Amendment into a wholesale right to own an Uzi?
Consistent? If anything, Roberts has shown LESS consistency in his positions than almost any of his colleagues.
35
As a lawyer familiar with the principles of judicial interpretation referenced here, I find this argument unconvincing. Judicial restraint in the statutory context tends to favor upholding existing legislation. In the Constitutional context, however, the meaning of judicial restraint is far less clear. In interpreting "equal protection" you may apply original intent or you may assume an evolving Constitution. Original intent analysis requires extrapolation, because attitudes toward gays in 1789 are pretty much unknown. Whichever way a justice goes in deciding gay marriage rights -- whether he or she espouses original intent or an evolving Constitution -- he or she is an activist, creating or denying a right as to which the words of the Constitution and the historical context do not give meaningful guidance.
2
Typical Indiana politician. Thinks the business of America is business; moves his brain cells at a snail's pace; wouldn't want to stand out as a thinker. We could have done better, but you've seen Pence - we could have done worse.
1
I don't see a Constitutional provision that clearly prohibits what Roberts voted to nullify in the Voting Rights Act. On the contrary, the 13th Amendment prohibits racial discrimination in voting and empowers Congress to implement that prohibition. Roberts, like so many conservatives, seems to have a blind spot when it comes to this country's history of racial discrimination.
25
"he concluded that no clause of the Constitution clearly protected a right of marriage equality."
Uh. Equal Protection Clause. Leaned this in public school.
Uh. Equal Protection Clause. Leaned this in public school.
10
Rather than purposivism, the 'ism' that most closely allies with Mr. Roberts decisions is neoliberalism. This certainly accounts for his support of the ACA, a absolute bonanza for the medico-industrial complex.
Also, the idea that "it is important for the Supreme Court to maintain its institutional legitimacy by deferring to the political branches" was utterly negated by Bush v Gore, while "his commitment to the court’s limited role in American politics" fits quite well with neoliberalism.
While support for marriage equality is fully in concert with the 14th Amendment, it also fits well with his devotion to corporate profits. I'm sure most businesses that benefit from marriages are very happy to cash in on the millions of weddings that are now possible.
As to this mendaciousness:
“Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire,”
if Roberts were an umpire, he would be remembered the same way we do the Black Sox.
Also, the idea that "it is important for the Supreme Court to maintain its institutional legitimacy by deferring to the political branches" was utterly negated by Bush v Gore, while "his commitment to the court’s limited role in American politics" fits quite well with neoliberalism.
While support for marriage equality is fully in concert with the 14th Amendment, it also fits well with his devotion to corporate profits. I'm sure most businesses that benefit from marriages are very happy to cash in on the millions of weddings that are now possible.
As to this mendaciousness:
“Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire,”
if Roberts were an umpire, he would be remembered the same way we do the Black Sox.
2
How ironic. Had the same words of dissent used by Chief Justice Roberts on same sex marriage been applicable 15 years ago, we would not have had a President George W. Bush. “Five lawyers have closed the debate and enacted their own vision…Stealing this issue from the people will cast a cloud…"
43
Now that the Supreme Court has changed the definition of government marriage, it is appropriate to question why the federal government is giving out exclusive financial benefits to couples with state issued marriage licenses. I think these government expenditures are hard to justify, especially since the vast bulk of these benefits go to our more affluent couples.
In 2006, the Senate voted for the Reauthorization of the Voting Rights Act, unanimously, 98-0. The House also voted for reauthorization with an overwhelming bipartisan majority, 390-33. President George W. Bush signed it into law surrounded by Congressional leaders, representatives of both parties and civil rights leaders in a formal signing ceremony. There was no doubt that both the Executive and Legislative branches were behind this legislation.
In 2013, the conservative majority on the Supreme Court, led by Mr. Roberts, decimated this same VRA. That was not the work of a Chief Justice intent on embracing "the limited institutional role of the court in relation to the president, Congress and the states." It was the work of an "Activist in Chief."
I doubt he found for the ACA subsidies due to judicial restraint. He rarely shies away from activism in support of Republican ideology, clearly shown in his VRA decision and his marriage equality dissent.
More likely than not, both he and Justice Kennedy found it impossible to legitimize an illegitimate lawsuit by joining with the other conservatives against the subsidies and couldn't bring themselves to further erode the public's falling approval of this court. They simply could not fully immerse themselves in the Republican clown car, at least this time.
In 2013, the conservative majority on the Supreme Court, led by Mr. Roberts, decimated this same VRA. That was not the work of a Chief Justice intent on embracing "the limited institutional role of the court in relation to the president, Congress and the states." It was the work of an "Activist in Chief."
I doubt he found for the ACA subsidies due to judicial restraint. He rarely shies away from activism in support of Republican ideology, clearly shown in his VRA decision and his marriage equality dissent.
More likely than not, both he and Justice Kennedy found it impossible to legitimize an illegitimate lawsuit by joining with the other conservatives against the subsidies and couldn't bring themselves to further erode the public's falling approval of this court. They simply could not fully immerse themselves in the Republican clown car, at least this time.
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Mr. Rosen's article may well "explain" why Roberts supported the Affordable Care Act and didn't support marriage equality. But can we credibly credit him with "a bipartisan vision of judicial restraint based on the idea that the Supreme Court should generally defer to the choices of Congress and state legislatures" when supporting the ability of corporations to have sincere religious beliefs or that spending vast sums of money is what the founders thought of as "freedom of speech"? Come now.
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Justices shouldn't be bi-partisan; they should be non-partisan.
2
"He has written or joined opinions striking down federal campaign finance laws and voting rights laws. ... In these cases, however, Chief Justice Roberts identified a particular clause of the Constitution — the First Amendment, the Fifth Amendment or the 14th Amendment — that he believed invalidated the federal law in question."
Congress could fix Citizens United, but it won't. I may not have agreed with that decision, in fact I thought it awful, but I don't think Roberts's reasoning was featherbrained. At least the chief justice isn't Alito or Scalia, let alone the one person who absolutely doesn't belong on the Supreme Court: Clarence Thomas.
His approach is commonsensical and for the most part unobtrusive, and certainly preferable to "originalism," which is even more ridiculous than "textualism." As far as I'm concerned, Scalia is guilty of malversation, as is any justice who predetermines an outcome based on a political preference; and his attempts to justify his party-line positions by appealing to the imagined intent of the Founders is insulting.
The problem I have with the Supreme Court is the way the justices are appointed, which is stupid and which should be changed. Something like the Israeli Judicial Committee, an apolitical body, would be more attractive.
Congress could fix Citizens United, but it won't. I may not have agreed with that decision, in fact I thought it awful, but I don't think Roberts's reasoning was featherbrained. At least the chief justice isn't Alito or Scalia, let alone the one person who absolutely doesn't belong on the Supreme Court: Clarence Thomas.
His approach is commonsensical and for the most part unobtrusive, and certainly preferable to "originalism," which is even more ridiculous than "textualism." As far as I'm concerned, Scalia is guilty of malversation, as is any justice who predetermines an outcome based on a political preference; and his attempts to justify his party-line positions by appealing to the imagined intent of the Founders is insulting.
The problem I have with the Supreme Court is the way the justices are appointed, which is stupid and which should be changed. Something like the Israeli Judicial Committee, an apolitical body, would be more attractive.
Principled with a tilt to the Right?
His Court in the main's been a blight,
He's had some heart to spare
In regard to Ocare,
On most everything else, t'was goodnight.
His Court in the main's been a blight,
He's had some heart to spare
In regard to Ocare,
On most everything else, t'was goodnight.
30
Whenever a Justice manages to rattle
And pols on both sides of the aisle tattle
It proves the Chief is calling ’em right
He just doesn’t have a dog in the fight
So common folk are winning the battle!
And pols on both sides of the aisle tattle
It proves the Chief is calling ’em right
He just doesn’t have a dog in the fight
So common folk are winning the battle!