Well, Ross, you have momentarily merged your typical ideological blinders with your colleague David Brooks' False Equivalence. I leave it to the reader to decide whether this is a move upwards or downwards.
24
I disagree with your comment that Trump is too weak to take on the Supreme Court... do you honestly think if he told them to go shove a decision Fox News and all his brainwashed followers would not follow him!
8
If you haven't already, read Levitsky & Ziblatt, How Democracies Die.
Hitler, Peron, Fujimori, Chavez, Orban, Erdogan, and Trump. All the same characteristics, much the same (except for Hitler) means of inserting themselves and taking over a political system. In the US, the stage has been set by the appointment of conservative judges and most notably Justice Roberts's solicitation of the suit that is known as Citizens United.
Justice Roberts is no hero who will save our representative democracy. Rather, he has played an essential role in a strengthening oligarchy.
17
What John knows, is that if the courts loose the faith of the Liberals, all is lost. The Republicans have had no faith in the rule of law for a very long time. If the courts loose any semblance of fairness they will be lost altogether. If John can not keep our faith, he will be powerless, and we will truly slip in to corporate fascism. The corporations taking all the power and turning the "Tea Party, Evangelicals" Brown Shirts on the country to unleash the rain of terror. To quote Monte Python "No body expected the Spanish iInquisition" and yet it did happen.
9
well said
2
Ross - did you really say the executive trumps the judiciary in a time of crisis?
Time to turn in your op-Ed credentials since, to paraphrase James Carville, “it’s the rule of Law, stupid”.
13
Blah, blah, blah...roberts stay3d silent while mitch mcconnell held 1/3 of our government hostage because he didn't want the black guy seating another justice.
McConnel and gorsuch* are usurpers and roberts stayed silent.
The world watched as a potential supreme court nominee, himself a judge, indirectly threatened 1/2 the country with judicial revenge and directly threatened a US citizen, Hillary Clinton, as they also watched him repeatedly lie while under oath and again mr. roberts said nothing.
So spare us your praise of our clearly compromised chief justice ross.
28
Ross has got his normalizing in overdrive. Ever hear of a dem prez trashing the court to the troops. Ross is all to buisness as usual, nothing to see here. Berlin, 1930.
21
An "anti-imperial rebalancing", what the heck is one of those?
Not a particularly logical, or coherent, article, but what I wanted to say is that it is perfectly possible to disagree with a judge's rulings, but still side with and support that judge when he stands up for the independence of the judiciary.
Seems pretty obvious to me......
8
It doesn't seem as if the American experiment will endure for 1000 years. That's a shame, because we started with such promise. It occurred to me that if the American Revolution had not taken place, we would have evolved into something like Canada and be part of the Commonwealth. We might have ended slavery much sooner as well. I'd like to be part of the Commonwealth. I admire Queen(s) Elizabeth (both of them) and tear up when I listen to Jeruselem.
7
Both sides do it? I can't believe it.
13
"... our president is mostly just exposing a degradation that already exists, acknowledging a truth of our constitutional order that’s badly disguised by official-D.C. politesse."
Yes. I thought the same thing a week or so ago when an article on Nancy Pelosi contained this quote:
"As one of Pelosi’s former senior staff members, describing Pelosi’s outlook, told me: 'What do you call a person who’s 99 percent loyal? Disloyal. She has a long memory.' Crossing Pelosi, it was understood, came at a cost."
So .... what's the difference between Trump and Pelosi when it comes to demanding "loyalty?"
Well maybe, Pelosi is more transactional and returns favors, but you get the point. Pelosi, a metaphor for all things Washington, is more able to hide her mean-spiritedness, perhaps even from herself. Trump wears everything on his sleeve.
The other day, I guffawed helplessly over a comment made by Lawrence O'donnell noting that Trump is transparent even about his criminal intent. Yes, over time that sleeve has been made disgusting by all the things Trump has put on it, but his clueless transparency is a gift.
6
A strangely contorted piece, and one which bizarrely goes again a conservative tenet. The tenet is decorum.
That the US Supreme Court has always been political is obvious.
Pretending that it is not is a notoriously useful piece of decorum.
Now Trump is doing this incredibly un-conservative thing of shredding decorum to pieces.
And conservatives keep applauding, and Mr. Douthat does what other conservatives do : "oh but it's ok to shred decorum to pieces because the other side does it too !".
Thus shredding another illusion : that conservatives mean what they say.
6
you miss the point entirely, Mr. Douthat - almost as if you tried to do so.
The ideological bent of the judiciary and tension between executive, judicial, and legislative branches is not a revelation of the failure of our republic, it is proof that it works when members use it as intended. Some judges sit for life because they will outserve those who nominated and approved them, so their ideologies will rein in later public servants.
Tension between them is the trigger for our entire constitutional republic. The judicial, executive, and legislative branches are designed to engage in conflict, and our freedoms are best safeguarded when this is so. For some reason, neoconservatives (who are supposed to work for a smaller role for federal government) now wish to do away with all these constructive conflicts. GWB and The Donald use the "unified theory" of government, as if one group is perfect and all others are wrong. Republicans try to remove every restriction on business and trade while simultaneously crippling oversight, as if humanity is only ever always good.
Go back to Protestant political theorists, and read why constant checks on powers will result in greater freedoms and power for the average citizen. Thank God the Democrats have the House majority; not because they are better than the Republicans, but because political opponents working to limit each others' powers are our best hope.
10
Consider the following hypothetical scenario: 1, Trump declares martial law, 2. The Supreme Court issues an injunction to stop ie, 3. Trump ignores the injunction. What next?
9
1. The Warren Court was liberal in the sense of making the Bill of Rights meaningful in the 20th Century. It continued to observe the general rules of statutory construction developed over centuries to constrain the power of judges. And it respected its own rules of justiciability, meaning that it avoided Constitutional issues where possible.
2. I can't think of a single example where the Warren Court struck down a statute like the Voting Rights Act. I can't recall a case where the Warren Court reached out to establish a liberal goal as the Roberts Court did in Citizens United. And I can't think of a case where the Warren Court decided an election. These are profoundly political cases.
3. The current group of conservative hacks on SCOTUS should not be mentioned in the same breath as the Warren Court.
29
Both the Rehnquist and Roberts courts have been judicial activists, i.e., they have frequently overruled both long-standing precedent and laws passed by Congress. And, this activism has always been in service of the Republican platform---voter suppression, empowering the rich, union-busting, and more rights for corporations ( including giving corporations religious rights.) Not to mention Bush v. Gore, which was more a judicial coup than a judicial decision. Almost half the current justices were appointed by presidents who lost the popular vote. Gorsuch and Kavanaugh were confirmed by Senators representing less than half the population. The next time the Dems are in charge, they should create 3-5 more seats on the Court, even if that requires getting rid of the filibuster ( which is itself an anti-democratic rule in an anti-democratic body.)
11
The insistence by pundits that we are engaged in tribal warfare is a meme that has taken hold and should be put to rest, if we are going to better understand the harm that this president is bringing to this democracy. The president promotes the notion that "there are good people on both sides" describing a white supremacist rally that was given over to toughs chanting "Jews will not replace us." We had a deeply divided nation when the idea of lynchings and and Jim Crow persecution were widely condoned. We were deeply divided when we had people protesting the Vietnam War. We were deeply divided when the old Black Panther party was by arrests and persecutions and death. We have been deeply divided in America since our founding, . We have been bold faced nativists in the face of every wave of immigration. But the press and the cable pundits still feel justified in talking about extremes on both sides. The outrageous lies of this president to me is what has opened the door to the threats and violence in Pittsburgh and in Charlottesville, and the killing of two African Americans in Krogers when the killer could not get into a Black church to do violence. Trump has torn away the curtain that has hidden the truth of how deeply divided this country is. He is unashamed and unrepentant. There are people who worship raw power, and disregard the law. What we need to focus on is what we are going to do to begin to bring the ship up from the bottom of the sea.
12
This was typical nonsense from Ross Duthat, who as usual, misses te point.
If Ross wanted to put Trump's irrational, bigotted, fascist attitude towards courts into true perspective, Douthat would have referred to Trump being critical of decisions of a Judge who is of Hispanic descent. In that situation, Trump was stating that simply because Trump is bigoted against Hispanics, that means Judges of Hispanic descent are bigoted against non-Hispanics.
And Ross blindly ignores that Trump believes a President, as a defendant, should be able to choose which Appellate Court a defendant or plaintiff appeals to, despite that an Appellate is always determined by which District Court's determination is being appealed.
And Douthat ignores, that seemingly conservative Supreme Court Justices chosen by conservative Presidents have turned out to be progressive, and many seemingly progressive Supreme Court Justices chosen by progressive Presidents have turned out to be conservative.
Ross Douthat's problem is that he sees the world from a dogmatic perspective, and falsely imagines Trump to be equally dogmatic when in fact Trump is simply irrational, poorly educated, poorly informed, with an IQ below average, a sociopath and increasingly senile. Justice Roberts will preside at Trump's impeachment.
I applaud Chief Justice Roberts for his statement defending the integrity of the Federal Courts. As Roberts is Chief Justice of all Federal Courts, he did the proper thing.
13
Look at any third world country run by tribal thinking. You don’t have to look far, Iraq, Afghanistan, Syria, the list goes on, and the U.S. is going down this road. So what will separate us from those countries who’s leaders are themselves tribal, nothing.
It won’t be long before we start blowing each other up al in the name of country, but who’s country. A Democracy is supposed to function because we the people allow it to function. It stops functioning when leaders respond to only one group of people, while demeaning the other side, and that is the current world in which we are living.
5
I agree with almost all of this, particularly the criticism of Chuck Schumer’s tweet. I haven’t been happy with Schumer since the Iran deal, and his hanit of nakedly politicizing everything is extremely tired.
The only thing I disagree with is the absurd false equivalency implied by the reference to “Merrick Garland amd Brett Kavanaugh”. The Garland fiasco was a complete abdication of duty on Mitch McConnell’s part, and he should have been impeached. On the other hand, Brett Kavanaugh’s performance in front of the judiciary was laughably partisan and fake, and he demonstrably lied about his past, which should have disqualified him.
You really should do better at checking your own partisan bias, Mr. Douthat, considering you write about it so frequently.
13
Supreme Court justices, and members of the judiciary generally, are human; and hence are obviously politically biased. Democratic presidents tend to appoint liberal leaning judges, while Republicans do the opposite. It's rather naive, or politically motivated sanctimonious, to assert otherwise.
3
One of the great problems of living in the USA is the constant bombardment of news and the distraction from the really important information. Those of us who are outsiders are often party to the inner workings of elite Catholic society and know that even the tiny world of Roberts, Gorsuch, Alito, and Roberts is not entirely homogeneous.
Today's Guardian tackles the root of of how chow a Trump can become the head of the most powerful human being on the planet because people like Ted Cruz have little if any respect for truth, justice and Judeo Christian morality. Conservatism and historical precedence have placed John Roberts in an untenable position.
John Roberts told the world there are no Trump judges, Obama judges or Bush judges which is inaccurate to say the least. We know American justice wears no blindfold and has her thumb on the scale. Every day brings us evidence that Droit de Seigneur is still the law of the land.
I am a Jew and I grew up in an ultra conservative Catholic dominated society. I understood how antisemitism was a tool used by the powerful to control their base. I remember Orwell's 1984 and how Emmanual Goldstein became George Soros. I understood the denial of the Republicans that claimed antisemitism and racism wasn't a core belief of its base as it fed its base the lies and the hate that made Trump its leader. Roberts has no chance!!!
https://www.theguardian.com/politics/2018/nov/25/tory-links-us-lobby-firm-facebook-smear-scandal
3
How dare you compare the Garland and Kavanaugh nominations. One was a credibly accused sexual abuser who ended up on the Bench anyways, and the other was denied even a hearing, with Sen. McConnell crowing that it was his 'proudest moment'.
13
John Roberts was once part of the lynch mob masquerading as private citizens who shut down the recount in Dade County in 2000. His face is clearly recognizable in photos. It seems that he has somewhat matured since then, the weight and gravity of the office can do that. He is now charged with being the voice of sanity on our toxicly divided court. My guess is that the whole Garland/Gorsuch felony did not sit well with him and that the Kavanaugh disaster appalls him. His sense of history and his personal legacy may serve in to moderate his behavior. It is a slender reed, but it is all we have.
6
How dare the Democrats criticize upstanding and level-headed justices like Clarence Thomas and Brett Kavanaugh! How dare they say that Reagan's pick of Robert Bork (the only guy unethical enough at JD to go along with Nixon's Saturday Night Massacre) was politically motivated!
Ross, we're just calling a spade a spade. And we're just getting started.
1
I do not think we have a "two-emperor" problem here. It is primarily the case of a president who sees enemies behind every tree and, to make sure they do not close in on him, he is shooting in every direction.
Considering the fact that Mr. Trump is highly narcissistic, it is natural for him to be horrified of the prospects of being impeached. One can speculate that impeachment is the main reason for him having problem going to sleep at night, as indicated by his 3:30 AM tweets.
Mr. Trump knows that Mueller's report will be coming out within the next 3 to 6 months. In preparation for that, he has now identified those individuals who will have a significant say on whether the report's revelations rise to the level of impeaching a president.
The country's key media personalities and national security leadership are obviously on the top of Mr. Trump's list. And, to reduce their influence on the impeachment process, he has spent much of his time painting them as a bunch of biased and irresponsible individuals.
Now his lawyers are telling him that his impeachment case could end up in the Supreme Court. Since the SC is currently under John Roberts' leadership, it would be his view on the impeachment that would influence the other Justices. Hence his attack on Justice Roberts.
Expect Mr. Trump's attacks on the US judiciary system in general and Justice Roberts in particular to become more vicious and frequent, as the release of Mueller's report become imminent.
2
We have a cancer on the body politic. It ain’t John Roberts. Ingenious defenses of the president are an entirely irresponsible use of Douthat’s place of high privilege in our national discourse.
1
Don't forget McConnell's power. He is responsible for Gorsuch and Kavanaugh to the exclusion of Garland. Call them the McConnell judges and refer to him as part of a three-emperor problem.
7
You say a minority of Trump’s Twitter beefs are "genuinely edifying", and "reveal truths about our political situation,... harbingers of the Republic’s eventual end."
Like a disheveled, drugged-up oracle moaning incoherencies in a one-note syncopation, does he reveal anything resembling the truth except what poor taste he has in loving himself so much. Anything like enlightenment from Trump is by accident alone or your own desire for the impossible.
And, by the way, the republic has had its end. It is now completely for sale to the lowest most craven, murderous Russian or Arabic Islamic terrorist bidder.
The end came with the "election" of Trump and the enthusiastic support of the GOP because of his mob. His mob, the mythical immovable bunch of angry, white, left-behind guys may not really like Trump that much; after all, even they must have some limit to their tolerance for monotony.
But they love his court picks. They want a court that will preserve their right to carry weapons of mass destruction, punish abortion, garbage the environment, and maybe let segregation and discrimination run rampant again.
The supreme court has always been politically biased. But this current version often shows how behind the times it is and on the wrong side of history.
6
Sorry, Ross, but I don’t quite remember having “lived through” a Merrick Garland nomination.
7
Douthat falsely equates ideological bias with political partisanship. And on that rather large error, his entire argument crumbles.
4
Mr. Douthat’s would have been more accurate in his Shakespearean allusion to Trump’s tweets if he had quoted Shakespeare’s exact words, “the expense of spirit in a waste of shame...” as those tweets are as shameful as they are energy using.
4
In the first place, how can you compare what Trump tweeted vs. what Schumer said? One is the President, who has the bully pulpit of all bully pulpits.
I never saw Obama criticizing the judiciary personally, although he was mighty upset with a bunch of rulings against his beliefs.
By equating Trump's tweet with Schumer's response sounds like you think overturning voters' rights and allowing unlimited political contributions are equivalent to ruling against some obscene human rights imposed by presidential order.
It is very hard for me to understand your Christianity, when it seems the only thing that defines it is the striking down of Roe.
1
"their Twitter beef is an illumination of reality, rather than a step into crisis"
Really??? The constitutional crisis actually began with Mr. Trump's inauguration and has built by fits, starts, and explosions. Beginning with manifest violation of the emoluments clause, which means nothing to a man out to enrich himself by any and all means available. And do just about anything and everything to avoid his real actions being called to account by legal standards.
As Fintan O'Toole sets forth in the latest New York Review of Books, virtually every word and concrete action of the man is aimed at discrediting constitutional democracy.
3
The phrasing of Mr Schumer's tweet could have arguably been better. However, his rebuke of the Supreme Court's validation of corporations as people too in the incredibly anti democracy legislation of Citizens United (championed by Republicans) should give pause to any American who embrace the meaning of "we the people." Mr. Schumer's expressed disapproval over Trump's dismissal of Federal judges who dare challenge or thwart Trump's anti democracy and/or inhumane policies as partisan hacks should profoundly concern all Americans of any political ideology.
America has entered unchartered territory with a tyrannical occupant of the White House regularly ignoring the rule of law, not to mention the nobility, protocol & civility of the most prestigious leadership role in the world. John Roberts' rebuke of Trump's latest tweet was highly appropriate for these unorthodox & inappropriate times to assure Americans that judicial rulings aim to be fair & non-partisan. That being said, one cannot imagine the latest Justice, Brett Kavanaugh, ever publicly criticizing Trump, especially after Kavanaugh's grossly unhinged & deeply partisan comments made during his Congressional hearing.
A conservative or liberal leaning Supreme Court, Presidential administration or Congress will always be viewed with some degree of skepticism, if not animosity, by those who do not share that particular ideology but legislation and ruling thwarting democracy must be challenged by all Americans.
3
We appreciate the Shakespeare reference in your opening sentence.
The fundamental problem, which you overlook, is that the president has demonstrated many times that he does not understand the role of the judiciary in our government or the role of legal thinking at all. In a legal case, all he appears to care about is who won, not the legal analysis, the referenced precedents, the underlying principles.
With a new conservative majority on the Supreme Court, it behooves conservatives to emphasize the reputation of the “independent” judiciary. Trump is apparently not perceptive enough to see this. Roberts is.
3
I agree with Ross Douthat's and Trumps position that the courts are an extension of a Republican congress incapable of any constructive action. However, It is my opinion the Supreme Court decisions in Citizens United and related cases that turned our election process into how much it costs to buy a candidate, returning Senator or Representative. It destroyed McCain-Feingold's long attempted work to regulate the huge sums of money. Chief Justice John Roberts and four Republican justices I believe knowing made new law in that corporations and labor unions are not persons. The Republican/Bush court. Reference Chief Justice Supreme Court Brandies: "You can have a democracy or great wealth in the hands of a few, but you cannot have both."
9
Hmmm ... Did Mr. Drumpf mean only that there are judges appointed by Obama? No, he meant to say that they were not his choices and therefore they were lesser. Schumer's unfortunate treading on his own tongue doesn't dismiss the real point here. We all want our Courts to be impartial and independent of partisan politics. Roberts' thought, I hope, was that his court tries to operate above the fray even though they were appointed with their political leanings under consideration. The Supreme Court is not supremely perfect, they are merely human as are we all although Mr. Kavanaugh appears to be of the more base kind of human. I would even welcome Mr. Scalia back as he was at least intelligent, sometimes humorous. "So it goes" as Vonnegut said or "Bof! C'est normal" as the French say.
2
This essay, while interesting, misses the point (and danger) of Trump's comment. It is clear that presidents nominate judges in the hope that they will rule in accordance with a particular philosophy. That is not the phenomenon that generated Trump's comment. Trump thinks like a mob boss. For him to say someone is an Obama judge to him conveys the same meaning as when Don Corleone owned judges in The Godfather. It is the same thought process that led to the ouster of Sessions. Unquestionably Sessions reliably espoused the notions about, say, immigration that Trump holds. But because he acted like an Attorney General rather than a consiglieri, he had to go. It will be interesting to see how he handles judges appointed by him start ruling against him.
12
Mr. Douthat, the old order is outdated and run by ever an older collection of politicians who don't seem to understand the new world they face. Instead of trying to adapt to it, they have chosen to try and recreate the old order.
Insanity is a mismatch between perception of reality and reality itself. This is why we are where we stand.
3
As usual, Douthat simply doesn't understand what he is writing about. Let me explain.
The so-called "politicisation" of the Supreme Court is a complete illusion created by the now fundamental dichotomy of American politics into Democrat and Republican camps. This dichotomy is projected onto the Court by the political party affiliation of the president who appoints any justice, but it simply makes apparent what has always been real.
Judges are people and they have their own political beliefs. They take those beliefs with them into the courtroom whether they are appointed by a president, the Attorney General or a bipartisan judicial appointments committee - the process can have no effect on the conduct of the individual once they take a seat on the Court. You can argue that bias within the appointment process will select individuals with strong political beliefs one way or the other, but they still have to be competent to write opinions.
Any judge, Republican, Democrat, Independent or otherwise must write cogent opinions which are accepted by the majority of the legal profession as being identifiably based on current law in order to have any opinion accepted into law. In the case of the Supreme Court, a majority of justices must reach agreement through that process on the outcome. Political bias might exist, but each justice's reasoning is open to question and challenge from the day it's published.
The law isn't politics - there are rules that can't be ignored or avoided.
8
Some changes to the Supreme Court, Congress, & the Presidency are needed. To the Supreme Court: Term limits, say 10 years, with the justices haveing to be at least 70 in their first year, with each being Chief Justice, in rotation, for one year (oh, that means we need 2 more justices (have to be at least one more than the number of justices & it must be an odd number). The citizens should be able to throw out any one justice by getting 10 million signatures to put the ‘recall’ on the ballot (2 months after the signatures are validated). The Senate should be elected for 2 years, 1/2 at a time, or go back to state legislatures appointing them. The House should be 100 all elected nationally. Finally, the presidents job split in 2. President for all the ceremonial & formal occasions, & a Prime Minister for running the country (& must be bi partisan). Ban all political parties. Ban all donations to politicians (from $1 to millions). Exams in Civics for voting & running (harder for running). At all levels 10 million votes can trigger a ‘recall’ of any national office holder (President, Prime Minister, Members of Congress, & Supreme Court members). No Vice President. The national dept heads (formerly the cabinet) all professional bureaucrats, who work under the Prime Minister. Someone like Trump could be President & not destroy the country. If he didn’t do his ceremonial duties (going to lay wreaths, etc) he could be ‘recalled’ easily. His wife would only be his arm hanger.
1
God help me, I actually agree with Ross Douthat.
Mostly.
But his comment about "the political abdication of the Congress, the steady atrophy of legislative power and flight from legislative responsibility" was, well, a bit too broad.
With even only one house back in Democratic hands, I'm pretty sure we're going to see a good deal of that beloved legislative power and responsibility rather gratifyingly restored.
And in two years, with both houses Democratic, he may get everything he asked for!
4
A very good and well thought out analysis. At some point a President will ignore a Federal Court decision whether it be at a lower level or at the Supreme Court. As only the Executive Branch has the power to enforce decisions, the President will prevail. “Jackson and Marshall” is the prime example. The only resolution at that point is impeachment and conviction which is highly unlikely. Congress is to blame as it has abdicated to the President and the Courts. Time to replace Congress if they fail to work to solve this problem.
2
The Supreme Court has been ideologically problematic since its founding. Marbury v. Madison is an exercise in deflection, holding that the Court is the final word on constitutional issues because, well, no other branch can do the job. This justification is Marshall's claimed authority for the Court's judicial interpretation of the Constitution. Other arguments are available on this point and repeatedly have been made; but at the end of this day, we're fortunate Trump can only neigh and bray about the situation.
2
Clashes between the president and the Supreme Court have been a reality of American political life lone before Donald Trump or John Roberts were born. One of the bluntest came in the early 1830s when President Andrew Jackson tauntingly responded by a Supreme Court decision stating: Mr Marshall (the Chief Justice) has made his decision. Now let him enforce it.
As Ross Douhat noted, the reassertion of Congressional power would restore a more workable set of checks and balances. However, the Congress as a body lacks the conviction and purpose of the other two branches of government. Clearly, we need a better class of politician.
6
In the long run, nothing will bolster Congress to be a third strong check until we get a handle on campaign funding reform. A dream I believe at this point.
Every time Mitch McConnell says the American people want this or that, I think, no...it’s what your funders want!
Our government is a cry for help at this point!
19
"a likely world historical role"? The only historical thing that will come in the future is that the four year aberration (pray to whatever god you believe in) will come to a suitable ending and the United States will change voting procedures and became a true democracy so that no carnival barker could ever ascend to the presidency again. It will be years before the office of the president is restored to its once esteemed rank in the eyes of world historians.
12
But Justice Roberts HAD to react to this. There was no reasonable way he couldn't...So I don't give him special credit for doing what his is duty within the circumstance.
You don't get a medal for simply doing your job. Trump forced Robert's hand because Roberts, as well as the rest of everyone, knows the Courts are exceedingly political....So the Chief had to mumble some weak platitude.
I am glad he did, though.
10
The concerns of Founders revolved around the distribution of centralized power with the idea humans in positions of power would perceive their roles in terms of a government of, by, and for the people. Problems have always arisen when those in power and political parties ignore this founding principle. This ignorance, or rejection, has been and remains a form of corruption for selfish gain, whether for indivual wealth, individual power, personal bias, or a political belief contrary to the principle.
The significant motivators testing Founding principles have been societal change, the one constant in human society, and how a government of, by, and for the people responds. Even our Founders recognized this constant making the Constitution amendable. Societal change is a consequence of man-made or natural stresses beyond the control of society.
President Trump represents an anti-democratic movement, one rejecting American Founding principles of government, as well as democratic values. Mr. Trump exemplifies corruption, selfishness, vulgarity, and vengefulness toward American ideas. Mr. Trump pointing out perceived partisan problems in democratic institutions is not out of some sense of patriotic enlightenment but every slight perceived as a partisan plot against him. Paranoia is a consequence of anti-democratic ideas in a liberal democracy. Congress and the Judicial Branch must again embrace their intended roles based on Founding principles.
4
Wait. There is a difference between holding ideologically different views and rejecting a person because he is from the other party.
The former is what Schumer did in criticizing those Roberts' rulings and the latter is what Donald did when he reflexively dismissed a question about Adm. William H. McRaven as "a Hillary Clinton supporter."
For Donald, being a Democrat -- any connection to a democrat -- is disqualifying. That he continues to brand Mueller's team as "angry Democrats" is evidence of his disdain.
He treats the political parties as warring enemies, with a patriotic duty to support the commander in chief. There is no resolution but winning or losing.
To disagree with a judge's ruling is not to dismiss the judge. In Donald's mind, if you don't support him, you are an enemy of the people.
5
Mr. Douthat must be in Conservative hog heaven with two Republican icons now at the head of his ruling pantheon. Right and Right-crazy.
We are in deep trouble if we think that the antidote to Donald Trump is John Roberts. Both are intent on destruction of every bit of social and economic progress we have made in the last 100 years. The only difference is that Trump wants to take a wrecking ball to everything we hold decent and dear in eight years, and Roberts wants to dismantle it piece by piece until he dies. The effect will be the same: the destruction of our democracy and our nation.
Legislation is the only remedy. We must hold the House and capture both the Senate and the White House. It is the only way to undo Trump's damage and to serve as a check on Roberts and his alt-Right minions on the court.
It is urgent that we do this, whatever political party one identifies with.
14
But you're missing the bigger point: Trump believes anyone (or any institution) who does not align with his bizarre right wing "ideology" is the enemy, be it a general, a scientist, a Supreme Court Justice, a politician, a world leader, a media source, the DOJ, the CIA, the FBI, etc., etc. In his words, they are "disgraces." If he had his way, these people would be jailed and the institutions would be gutted.
11
Judges and justices are human, with values, beliefs and mindsets that can only be called political. They are asked and expected to temper those impulses in their jobs; at the Supreme Court level, the body is structured in a manner that is supposed to encourage the vibrant exchange of thought and opinion before a decision is rendered by the majority.
I am sorry, but the present weaponization of the judiciary appears to be largely the doing of the Republican right, impatient with the courts' deliberative pace and what they can only perceive as "judicial activism," "legislating from the bench," etc. As a result, they have outsourced the vetting of judges to a doctrinaire third-party organization that does their dirty work for them. As a result, we now have such intellectual mediocrities and blatant partisans as Clarence Thomas and Brett Kavanaugh, who shamelessly advance their political agendas.
That someone as profoundly ignorant and corrupt as Trump could become president makes a bad situation much worse, though any Republican could have given us Gorsuch or Kavanaugh. After all, the choice no longer resides exclusively with the executive.
2
The ultimate power must reside in the law and the faithful execution of it. The Congress has the authority to act to remove the criminal from his high office. The problem here is that instead of Everett Dirksen or Howard Baker, we have Mitch McConnell, (and Newt Gingrich before him). Instead of Hugh Scott or Bob Michel, we have Paul Ryan, They are a reflection of their caucuses- small parochial men, unable to break with partisanship and lead the misguided people who voted for them. And then there's Fox News...
6
"The single most important thing we want to achieve is for President Obama to be a one-term president."
Mitch McConnell in an interview with the National Journal
10/23/10
Mr Douthat: On the surface this seems a reasonable column. That is until one asks, when did Congress decide to roll over and play dead, as far as governing is concerned? After all, that is what you are complaining about.
Many attribute the obsfuscation and negativity to this quote and the Tea Party ideologues who jumped on board. Then they all lost the bet.
From the blocking of a moderate judge, Merrick Garland, to pulling a Nancy Reagan ("Just say No to everythning that black man wants to achieve"), the unwillingess of the Congress to play its constitutional rule in the tripartate art of goverrning starts with a negative-for one is not out to ACCOMPLISH but is out to TEAR DOWN.
Nancy Pelosi is villified in large part by angry white Republitrump males because of her effectiveness in getting accomplishments passed by Congress FOR its'constituents.
Other than give themselves a budget busting altogether useless tax cut what did the GOP controlled govt ACHIEVE?
tearing down is easy. replacing +/or creating real harder
e.g. What about that great trumpcare promise?
More will be put forth FOR constituents in this Congress than any GOP Congresss could ever muster.
That puts Donny in a bad place: he caves in and deals, he loses his wild haired base. He doesn't he fuels his loss in 2020. Can't wait.
5
Every once in awhile, an acquaintance of mine on the other side, reminds me that that there is no justice, just us. That is about all, within which we both agree. Unfortunately, he is right.
This is not the US I within which I grew up. It is the winners take it all, forever.....this is not the democracy that I was taught and within which was practiced.
And it is quickly descending into chaos.
4
“..,the political abdication of the Congress, the steady atrophy of legislative power and flight from legislative responsibility, means that America is increasingly governed by negotiations between the imperial presidency and whichever philosopher-king has the swing vote on the court.”
On Point!
5
There has always been great argument between those, like Thomas Jefferson, who saw the Constitution as a living, growing document, designed to change to meet future societies' & generations' growth & change, and the fundamentalists, who believe the Constitution is carved in stone & must be interpreted literally, & when questions arise, they must seek out the opinions of men who lived 240 years ago to interpret them. This is the Strict Construction & Original Intent that also drives religious fundamentalists to apply a similar standard to their Bible or other religious tome. SC & OI are the foundation of the Federalists, who have brought us Scalia, Thomas, Alito, Goresuch, Kavanaugh, Bork, Meese, Roberts, Ashcroft, Cruz, Ted Olson, Orrin Hatch, & virtually all the lawyers in Trump's circle.
"Some men look at constitutions with sanctimonious reverence & deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, & suppose what they did to be beyond amendment... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, & more enlightened as new discoveries are made, new truths disclosed, & manners & opinions changed with the change of circumstances, institutions must advance also & keep pace with the times." -- Thomas Jefferson arguing against Strict Construction & Original Intent that is the core of the Federalists.
3
I have to correct Douthat's false equivalent. Douthat actually joined Merrick Garland and Bret Kavanagh in the same sentence as if they had anything to do with one another. Merrick Garland was completely shut out, not allowed any vetting, by the GOP Senate. On the other hand, Kavanagh was given a full vetting and despite his many lies, pugilistic assaults, and partisan ranting, was not only given a hearing but is now a Supreme Court Justice. The fate of both men is a direct result of a GOP Senate that wrangles and manipulates for pure partisan gain.
12
Is it possible to rule on the law? Can the rights of humans be they citizens are not be a political issue? If you believe in human rights, equality under the law, and due process, what the courts are ruling on is just the law.
The perversion is when corporations become people or dollars become speech. How about bullets becoming just another form of political speech?
Your article ignores the fact that political power was exercised by conservatives to steal a seat on the Supreme Court. It also ignores that Trump won with a minority of votes.
Trump wants to be a dictator. He has no mandate and he should not be complaining. The majority who must suffer him and the conservative Supreme Court that are creating a hate nation for the rich should be doing the complaining.
4
Your analysis is flawed. To state (as Schumer did) that he does not always agree with Roberts but is glad that he spoke up means just that. It is not a veiled left-right jab but an acknowledgement that a generally conservative judge maintains a sense of the law. To read it cynically, as you have, means that this country will never come back together.
4
Is this a secret yearning for a 'Good Emporer'? The elite branch of the GOP seems to pine for this, a 'good king] and a true aristocracy with the 'good of the people' at its heart. One of the amusing symptoms of this could be the yearning of the
1% for a bit of British blue blood gained through the marrying off of their daughters in the late 19th, early 20th century.
No, Ross old boy, thw'nt work. Been there, done that.
As you say, there's no Augustus in the offing. And he's highly overrated anyway. The Asians, the Chinese and Singaporeans especially, seem to have given up and gone for central political control and a freer market. Afraid you'll have to give up on Plato. Anyway he always was a bit of the stuffed shirt.
1
Government has too much power. This is the root cause of the problem. USA needs to go back to its roots, and eliminate a lion share of what the federal, state and local governments do and are allowed to do. There is no other solution.
2
Say what you will, Ross, about historical institutional conflict and partisanship of "both sides" (heh!), but it is conservatives who have relentlessly delegitimized the courts, in general, and the Supreme Court, in particular, for their supposedly "liberal" decisions, which began, it is important to note, with the Warren Court's decision to begin enforcing the 14th Amendment in 1954. Notice also that supposedly "partisan" liberal decisions came from Republican appointees like Burger, Blackmun, Rehnquist and O'Conner. And note also that a Justice doesn't have to be a 'swing' vote like Kennedy to become a target of the Right. All that's needed to become a detested "RINO" in the Rightwing media is to cast one "wrong" vote, like Roberts. Stop pretending that this court bashing is a bipartisan sport.
12
@John Burke Few people today remember the fury of a US president about the “citizens united” decision.
A system of government in which the control of political power is in the hands of a body whose members are chosen by the person and entity who hold that political power, is fated to end up in moral -and eventually actual -corruption. Someone in these comments said that the system is based on the expectation of having an intelligent, principled person as President. That sounds like a political version of Blanche Dubois' reliance on the kindness of strangers.
5
There's no contradiction between saying you disagree with certain decisions (for whatever reasons) while agreeing with a statement in support of an independent judiciary. Pick another theme.
6
For once Mr. Douthat expended his spirit in a useful manner, calling attention to the warts of our pseudo-democracy. The list is long, stating with the undemocratic electoral college. Followed by misuse of the second amendment to so as to foster individual gun violence by misinterpreting the word militia.The Supreme Court was established by Judiciary Act of 1789 and, mirable dictu, it had only six members. There is nothing in the Constitution about the size of the court.The size of the court varied until 1869 when the 9 member court was established. There is nothing sacrosanct about the number 9. FDR tried and failed to increase its membership. Another Constitutional wart was allowing court members to have a lifetime appointment. Like many other terms and words in the Constitution , the word lifetime is practically indeterminate. A lifetime in 1776 was on average at least a decade shorter than it is now. Changing "lifetime" to twenty or so years would make be force more change in membership but is very unlikely to occur. Since the current Senate leadership has overturned the capacity of the Senate to filibuster a Supreme Court appointment the politicization of the court is likely to proceed unabated.
7
Our system is out of balance. Congress is asleep and ineffective, failing to legislate in a timely manner. The Supreme Court has frequently alluded to this failure to act or write complete legislation.
10
I don’t often agree with Ross Douthat but he nailed it. Our system was not designed as a parliamentary one and if the Congress fails to perform its constitutional role, the imperial presidency will overpower the independent judiciary and our democracy will be lost.
18
@Helena Valentine Sadly, it already is. We are in the 'bread and circuses' phase of the American Empire.
3
The reality is Newt Gingrich declared cooperation with Democrats off limit in 1991 when Clinton won the presidency, and since then the so-called GOP has marched rightward and become a failure in terms of responsible governance. It has morphed from the loyal opposition to an extremist obstruction in terms of the legislative branch.
Trump doesn't have the intellectual capacity or honesty to comprehend any of this. An angry narcissist whose only goal is to create a fascist-like alternative reality, he is free of any moral/ethical constraints in his tiny mental world. The dumbest president angrily focuses on one of the smartest (Obama) as voters who aren't supporters push back.
The Supreme Court is too much like today's congressional Republicans in not reflecting the majority of citizens but a smaller distinct minority of them. Trump is only president to those who support him despite the reality that he doesn't actually have any other interest in them except that of narcissist-in-chief.
Our democracy will survive. Our relevance in the world order may not.
Eclectic Pragmatism — http://eclectic-pragmatist.tumblr.com/
Eclectic Pragmatist — https://medium.com/eclectic-pragmatism
29
Trump's comment was nowhere near as profound as Douthat suggests. It was yet another in a nauseatingly endless series of expressions of exasperation that anyone dares to stand in his way. It doesn't matter who it is, or what it is, that blocks his incessant self-interest: Trump's ire is multidirectional and totally discriminatory.
Schumer's comment does suggest that he is reinforcing the suggestion that the judiciary functionally is partisan. However, it does not. Douthat, again, belies his partisan perspective: Schumer was saying (perhaps, a little unartfully) that he agrees with some decisions and disagrees with others. And, given that he and Roberts don't always see eye-to-eye in this vein, he noted gladly that Roberts stepped forward to defend the conceptual independence of the judiciary.
That is what Roberts did. Reality, or political inclinations notwithstanding, the judiciary is supposed to interpret the law. Sophistry from one side or another may seem cute, but it should not sway a good judge.
There will always be a difference between what the judiciary SHOULD do and what individual judges do. But the importance of the principle needs to be emphasized. That is what Roberts, and Schumer, did.
And that is what Trump can never understand. The man with no principles or scruples cannot accept the legitimacy of others having them.
26
@Dave: You nailed this one. In Trumplandia, appointees have just one reason for living and breathing: “loyalty,” which means “you will do as I direct, without regard to laws or ethical canons to the contrary.” If an appointee disappoints, then off with her head. Former AG Sessions is the poster child for this Trumpublican principle. Sessions had no choice but to recuse himself - he had a glaring conflict of interest as a member of the Trump campaign, a witness, and even a potential target of the Mueller investigation. But in Trumplandia, Sessions’ job was to exert pressure on Mueller and otherwise use the Department of Justice as an instrument to rein in and wreak vengeance on those who would dare to cross our Fearless Leader and Supreme High Commander. In Trumplandia, the same is true of the federal judiciary. When Trump sends a judicial appointment to Congress, and once the slim Trumpublican majority in the Senate rubber stamps the appointment, the newly anointed judge’s job is to stay out of Trump’s lane - or be deemed a ‘disaster, stupid, a so-called judge.’
No question the selection of judges is suffused with partisanship. No question there are limits to each judge’s ‘neutrality.’ Each judge brings her world view and lifetime of experiences to the Court - just as each juror does. But all of us fully expect - or at least hope - decisions will be made based on evidence in the record and legal principle; not based on direction and threats emanating from the Oval Office.
3
@Dave The man with no scruples or principles also has spawned a family of grifters, who are also without scruples or principles - only in it for themselves. Mueller will, hopefully, out them all.
3
This is a very thought provoking opinion piece. Douthat's argument that the three branches of government are out of balance is perceptive and convincing to me. Congressional political abdication is the crucial issue.
11
If the judiciary isn't a partisan institution then why did Mitch McConnell deny President Obama the right to appoint a Supreme Court justice? Why is the conservative federalist society the employment agency for Presidential appointments to the federal judiciary? Why has Mitch McConnell not re-instituted that filibuster rule and allowed right wing partisan judges to be stuffed into the court system? No the courts are partisan and will remain so unless justices who are appointed decide that their ideological agenda needs to give way to fair mindedness and justice. This is not likely to happen. There are few Sir Thomas Mores sitting on the courts. Most of the justices are now owned by special interest power groups who know how they'll rule long in advance of cases being brought to the court of evidence submitted. Alito and Thomas never surprise us.
34
Utlimately, it shouldn't matter whether political or other considerations motivated Presidential appointments to the Supreme Court or the other federal courts. What matters is what the Justices do once they are on the bench when, given their lifetime appointments, they ought to be free of any political pressure. The problem with Trump's tweets about the Ninth Circuit is that based on his view of himself as this country's absolute ruler, he is attempting to pressure federal judges to rule a certain way and riling up his base to do the same.
17
As Ross Douthat says, the usually canny Senator Schumer stuck his foot in his word processor. Like Trump, there was no art in what Schumer said. He flat out agreed with the President that there are Democratic and Republican judges and applauded the Chief Justice for diverting from type to criticize the President's naked intervention in the judiciary.
Now, in the real world, there are surely many judges who believe in judicial independence, as does the Chief Justice, and uphold decisions (Roe v. Wade is an example) and laws with which they may personally disagree. I don't think, however, that Trump intends to appoint any such judges or he wouldn't have relied on Leonard Leo for his lists. So the threat to which Roberts responded is very real.
The new Democratic House of Representatives has no control (save impeachment and there it takes the Senate to tango) over the judiciary so while it may shame the Senate into action on mutually agreed legislation, the House is unlikely to be a force for judicial independence.
The President is likely to follow Andrew Jackson's brutal example and ignore Court rulings to facilitate Trump's quest to become America's Mussolini. I fear Trump will use our military as his foil by ordering an illegal use of military force against migrants -- mostly women and children --on the Mexican border.
13
Ross appears to have forgotten in history is that the Supreme Court has always been political.
For years before the Civil War the Court was dominated by Democratic Party slave interests, which led to the Dread Scott decision and the Civil War.
The Supreme Court was a creature of Democratic domination of the Senate and the Presidency in that era.
Lincoln was extremely critical of the Supreme Court long before he was elected President
9
@David
"Ross appears to have forgotten in history is that the Supreme Court has always been political."
Only he said that.
1
@brian
Ross missed the point.
Lincoln was extremely critical of the Supreme Court, but not because Lincoln wanted to be the emperor.
It was not at all about 2 emperors.
The Supreme Court is inherently political, and Lincoln felt the Court was a destroyer of liberty and the union at that time.
Ross forgot to mention that part.
Mr. Douthat’s insight is important and should not be lost amid all the partisan bickering: our republic was never supposed to function this way. The judicial branch is by far the least democratic of our institutions, and its role should be confined to the maintenance of constitutional order as the legislative and executive branches conduct their business — just as Roberts described during his confirmation hearings, equating judges to umpires calling balls and strikes. But with Congress AWOL for the past few decades, we have arrived at an impasse — a crossroads — with an energetic president pursuing a controversial agenda vs. an array of judges with the power to delay and/or derail it while the Congress cheers one side or the other but does nothing. Unless and until Congress reasserts its constitutional role, I fear this drama will not end well.
11
Highlighting congressional abdication of its role is spot on. As Michael Bechloss has recently reminded us, Congress has not declared war since 1942. But could we stop framing congressional impotence in terms of partisanship for just a minute and acknowledge we have deep structural problems that the market fundamentalism of the 70’s-80’s was supposed to cure?
And just where has the promise of the market gone? Answer: bloated central bank balance sheets, trillion dollar deficits, too big to fail finance, trade deals designed to weaken labor and skirt environmental regulation, nonexistent anti-trust litigation and thinly disguised clientelism of our politics. Yes, Congress has atrophied and market fundamentalism was the vehicle. Today, only the veneer of market fundamentalism remains, just as only the veneer of congressional equality remains.
7
I wonder if the author is truly observing a degradation of our system, or just the exposure of its true form.
I cannot help but think that, with the rapid expansion of the media’s reach, the common man is more aware of the workings of government than ever.
The dysfunction and general disregard for the rights of others fifty or a hundred years ago is rich fodder for history books.
Now we see more of it in real time, as the people who are truly in power evolve from trying to hide it in political “soft talk” to a more shameless statement of their positions and intent.
We may not be seeing a degradation of our flawed system of democracy. We may just be seeing its structure - wrinkles and all - in a better light.
5
Trump’s comments about the courts are simply an effort to pre-empt any actions they may take against him. “Trash talking” those who he perceives as potential enemies is purely defensive. It appears he is pretty nervous!
11
Justice Roberts stood up to a con man when we needed the Supreme Court to make a statement of merit.
I have yet to see a spineless GOP stand up for anything but money in their back pocket.
A journalist was murdere, people are hungry and homeless it’s about time someone put this anti AmericAn in check. There is a new day coming.
8
Your hope for a more assertive Congress to restore constitutional equilibrium is a pipe dream, Ross. "We the people" are too easily duped and manipulated by monied interests and fear-mongering demagogues and to evenly split between "us" and "them" to ever elect a Congress which will do anything other than engage in hyperbolic flame-throwing to rile their base.
So, "We the people" deserve the government we have. Enjoy it while it lasts.
6
It is curious to me that your discussion of judicial overreach omits the Dred Scott decision where a pro slavery court invalidated a whole set of compromises and work arounds in order to assert the supremacy of the South's peculiar institution.
6
Ross, you can't be serious.
Sure mr. roberts seems more luccid than mr. trump, but that's hardly a high bar to clear.
In the end mr. roberts is still just a bought and paid for rightist ideaologue.
Citizens United, the killing of the Voters Rights Act, the castration of The ACA and many others show mr. roberts is doing exactly what he's told to do by his true masters and brother, that sure as hell ain't us.
8
This is the best Douthat piece I can remember reading. And thanks, Ross, for highlighting what a clown Chuck Schumer is.
As usual, Trump stains everything he touches.
4
Trump is blasting away at Justice, law and order, human dignity, truthfulness and now the Supreme Count, with typical grandiose ineptitude.
The effectiveness of the SCOTUS can be best exemplified if it can throw aside conservative/liberal mindsets and target first and foremost on constitutional law. Is that even possible? Not by Trumpian standards such as they are.
When Roberts supported the ACA, I saw in him a possible free spirit who might just throw aside political leanings in favor of good solid leadership (Citizen's United notwithstanding). Since we cannot count of Congress stepping up and leading, Justice Roberts' fairhandedness becomes essential to a well run Court.
If only, huh?
2
Great discussion! Personally, however,I do not think it was by accident that the Founding Fathers choose the three branches of government (Executive, Congressional and Judicial) to try and balance the government against any internal or external forces that our fledgling nation would face, as it grew and matured. And it seems to me that they further manifested their confidence in the ancient power of the number '3' when they chose the pyramid to grace the One dollar bill and when they chose the phrase , E pluribus Unum ( Out of Many One) to put on the nation's Great Seal.
So, yes in theses uncertain and roiling times when 'Truth' is at a premium , it seems to me our current leadership in Washington would do well to recall that the Founding Father's, in choosing a tripartite type government, seemed to be aware that when stress is put on one side of a triangle, as long as the sides stay equal, the triangle continues to be one of the strongest structures in nature.
4
But Sen Schumer mentioned several SCOTUS cases he did not agree with, Ross. Trump attacked the judges themselves - just for who appointed them.
This isn't nuance, it's a fundamental difference. If you can't tell the difference than please don't make sophmoric comparisons.
10
The members of the Supreme Court all have their own judicial philosophies as to how the Constitution should be interpreted. There is room for many views - like the difference between a devout Catholic, a charismatic fundamentalist, a Unitarian Universalist, a Methodist, or a Quaker all interpreting their Christian beliefs from essentially the same book. When I was young, conservatives had plastered billboards saying "Impeach Earl Warren" all over the rural countryside. Warren, a life-long Republican ex-Governor of California was Chief Justice appointed by Eisenhower. But, since they found his court to be not right-wing enough for their views they were outraged. Many judges modify or push aside their own political prejudices & ideology & try their best to interpret law according to the Constitution. Many don't. They believe the Constitution says what their ideology wants it to say. But, it wasn't until Ronald Reagan that administrations began to draw up lists in advance of only candidates that, rather than possess competence & fair-mindedness, passed their litmus test of conservative political philosophy. Under Trump ALL of the list of candidates for SCOTUS or high federal appeals courts are approved by, & members of, the Federalist Society, a group of about 50,000 of the most rigidly right-wing lawyers among a total population of more than 1,300,000 attorneys at law in the country (3.8%). They all share a common ideology & seek to force it on the rest of the country.
5
Thank you Ross Douthat for bringing this issue to the public. The three branches of government are in grave danger. The presidency is a shameful mockery of leadership. The congress is a spineless rubber stamp of an incompetent, immoral presidency and now the supreme court has become a bastion of extreme right wing intolerant ideology. Chief Justice Roberts has a heavy burden to shoulder going forward.
4
What's corrupted the whole system, really, has been the ever escalating cost of campaigns and the general selling of politicians to the highest contributors or special interest PAC. Congress' artificially frozen size doesn't help things either, indeed, it only serves to create disparity in representation and blunts the effectiveness of the institution in balancing the political tension between itself, the Executive and Judiciary.
How we fix it remains another matter.
4
I guess one of the questions Americans have to ask themselves is who should interpret the constitution--the Supreme Court, or Trump?
4
@Ms. Pea - The only philosophy Trump has is that he is the smartest man on earth about everything & has a mandate to rule the country as he ruled Trump Enterprises, as a tyrant. If you disagree with Trump, you are wrong by definition in his mind. Worse, Trump sees disagreement as active enemy action of a vast conspiracy whose sole goal is to bring his administration down, or at least counter his massive over-extension of presidential powers. To him, everything is just a war, like 2 competing corporations, & there must be one winner (himself, of course), & one loser - who must not only be defeated, but humiliated & destroyed. Stalin, Putin, Mao, Mussolini, & Hitler would understand & welcome Trump to the club.
1
Chief Justice Roberts obviously holds to the ideal of an independent judiciary, judges being analogous to umpires, doing no more than calling "balls and strikes." That ideal has no currency with Trump, which is obvious, based on Trump's tweets and his sowing of division; he has clearly never been touched by the "better angels of our nature."
4
Way to go, Ross - distract us from the real issue here.
This isn't about dual emperors or any such pseudo intellectual premise.
This is about Donald Trump's abuse of power - his authoritarian methods, his disregard for constitutional norms, his mistaken belief that his executive orders are legal despite actual laws passed by Congress.
This judge - who ruled against him - did not do so because he was an "Obama judge" - nor did the judge who ruled against him in the Acosta/CNN lawsuit do so because he was a "Trump judge."
So the response to Trump's rants about the judicial system and judicial rulings and the Ninth Circuit should be a loud uproar from the public that Trump is a liar.
Just don't believe him. Don't listen to him. Don't pay attention to him. Don't acknowledge his rants. Don't give him any credibility at all.
Above all, don't call him an emperor without saying "he has no clothes."
9
The history of the so-called president as a businessman clearly shows that those who have associated with him have invariably been the worse off for it.
As sad as it is to watch, it is NOT surprising that WE will all be the worse off from his reign.
We are faced with holding our collective breaths until 2020, or until Mueller acts.
The sooner it can be ended, the better.
4
Looks to me that what is supposed to happen, is happening. The Supreme Court is not obligated to agree with the President, or the Congress; and in fact is doing the job well enough to aggravate both of the other two branches of government. This is what "checks and balances" is all about.
3
In the end, Justice Roberts is correct and Trump is wrong. The Supreme Court appointments may be political theater, but once the Court is established rulings are seldom set down on any kind of party lines. According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. In the 2016-17 term, 57 percent of decisions were unanimous. Regardless of whether the Justices are appointed by a Republican or a Democratic president, the court’s commitment to consensus is strong.
3
“So there is time for an anti-imperial rebalancing, in which a more assertive Congress somehow brings us back into constitutional equilibrium.”
Given the current Republican leadership in the Senate, I have to wonder how Mr. Douthat thinks this is going to happen. With a divided Congress, we are much more likely to return to legislative gridlock over the next two years, while McConnell continues to confirm “Trump judges,” the political hacks who are there to ensure the dominance of the corporations and the 0.1% at the expense of the rest of us. The idea that Roberts will be the “swing vote” replacing Kennedy is a pipe dram that will evaporate as soon as one of the aged liberals on the Supreme Court dies or retires, which could certainly happen before 2021. Same thing with the 9th Circuit, where there are already enough vacancies to eliminate the liberal majority. (And do we really expect McConnell not to ram through a Trump nominee, even if the vacancy occurs as late as October 2020?) At that point it won’t matter if Roberts occasionally exercises his conscience. The damage will have been done, and it will take another generation to undo it. It will take long-range planning and a coherent, consistent strategy over many years to counteract the work of the Right, but it is the only way to ensure that the courts once again work for and not against the majority.
4
Supreme Court should have 8 year terms
SC should be chosen by a legal team on a committee that includes various non partisan members with definite criteria as to who is qualified for this position. Keep the political guys away as much as possible.
The SC needs to deal with the fact that the constitution is 250 years old, out of date, was originally a flawed document and revise their approach to 21st Century decisions.
7
@RichardHead
Yes, the Supreme Court is broken, but I doubt that many, right or left really want another constitutional convention. However, Congress could theoretically set up a process whereby a body of federal judges and perhaps state attorneys general would submit a list of qualified names to the president from which he could nominate an individual. While this might not be a perfect system, it would be far preferable to having the Federalist Society doing the job.
3
@Michael McGuinness Yes, Congress could set up such a system. However, absent an amendment to Article 3 Section 2 granting the President the power to appoint, with the advice and consent of the Senate, Supreme Court Justices it could not be enforced. The only possibility would be for the Senate to refuse to confirm a Justice not on the list, and that would be unlikely to last.
The irony is that by implication the President's statement undermines the legitimacy of every judge he appoints, and thereby the Court itself, while Roberts statement attempts to legitimize those (questionable) appointments. Which is worse?
5
@Arthur Levine
which is worse?
anything trump says or does.
for it is from sheer willfulk ignorance
Fueled by gross incompetence.
Much ado about not very much. I don't buy the 'two emperor problem'. By Mr. Douthat's own admission, there have been episodes throughout American history where the Executive Branch has clashed with the Supreme Court. This time its been being prompted by the inarticulate rants by a crude President, and answered thusly by the measured articulate response by the Chief Justice. Both are stating what they believe to be the obvious, bias in the eyes of the President, independence in the eyes of the Chief Justice. The President can tweet what he wants, but that does not make it true, nor does it threaten our court system. He is only revealing his deep ignorance of the law and the courts, just as his previous rants in regards to 'his Attorney General' revealed his complete misunderstanding of the Justice Department. His executive orders are by and large unconstitutional and Trump does not like to be told that. Had he been winning at the lower court level he would be silent now. And as for the political leanings of the Supreme Court, perceived over the last couple of decades to be conservative - how then do we still have Roe vs Wade relatively intact? How come we still have Obamacare? How come gay marriage was ruled legal?
No worries, in my opinion - there is still room for the Court to surprise - and besides, Trump should be long gone before Robert's will even contemplate retirement.
3
All this emperor talk reminds me of the “Emperor Has No Clothes” tale. If Mr. Douthat’s characterization is correct that Trump is in some ways an emperor, then the fact that he is (metaphorically) naked will soon become obvious. We will all suddenly realize how we have been deceived and be rid of the delusion.
Perhaps.
If so, it will happen because increasing numbers of people will throw off the ideological blinders and realize they have been deluded to believe that this man is working in their interest.
In the meantime we can hope that enough people in places of consequence will wake up to the consequences of enabling Mr. Trump when his delusions unravel to a dangerous point. Hopefully simple acts of refusal and resistance will blunt his baser aims.
More importantly, our system is based on three emperors, not two. Voters have enabled, albeit in a limited way, that third arm by electing a Democratic Congress. Let’s hope it’s enough.
The three branches of goverment act as check on each other with the courts often checking the Legislative and executive branches. Is it time for the Legislative and Executive branches to check the courts to keep them within their Constitutional limits?
Their are cases where it seems clear the real motivation of the court is ideological rather fidelity to the Constitution. As an example the first Amendment's text limits its scope to restricting the legislative branch from making laws infringing certain freedoms and the due process clause restricts deprivation of life, liberty and property. Both were successful ju used to argue that the executive branch had to restore Acosta's whitehouse privilages. What law did Congress make (First Amendment)? What property was taken (Fifth)? I would argue none. so how can a lower court overrule the Administration in Acosta's case.
A check on the lower courts is Congressional legislation as it defines the optional lower courts. "The judicial Power of the United States, shall be vested in one supreme Court, and in such INFERIOR COURTS AS THE CONGRESS MAY FROM TIME TO TIME ORDAIN AND ESTABLISH."(Caps added for emphasis). Congress also has the power to impeach judges and in my opinion should if a judge is believed to intentionally violate the Constitution. While courts often use precedent to define the meaning of the Constitution, you won't find such an explicit power in the Constitution. Did the courts give themselves this power?
I agree with everything you say (very rare); on the face of it, Judge Roberts' statement is clearly incorrect. We need no further evidence of the political leanings of Supreme Court justices than the several confirmation hearings or non-hearings over the past 2 years. However, presumably Roberts is a very smart guy and knows all of this. So rather than attempting to convey a factual truth, I read this instead as Roberts sending a clear warning to Trump to keep his hands off the courts.
7
"the military and law enforcement"
Add to that the armed (civilian) cultural warriors: the NRA. Politics is ultimately underwritten by the threat of violence, and violence is always the domain of the Right. The State is by definition conservative, and its primary purpose is to "bear the sword." Any state will have conflicting visions, but only the one underwritten by violence will prevail. Democracy will ultimately devolve into a thousand warring visions, in essence, ungovernable chaos. A simply nod to the iron fist is all that the Right needs to seize control (Orban and Putin are lesser evils in this scheme). From non-borders, trans-rooms, welfare, climate, the Left is too widely dispersed to provide a united front, and the disenfranchised Right is willing to burn the entire house down--and is in position to do so. The rural nativists feels themselves squeezed by the UN-dominated coasts (all done constitutionally and legally, as the saying goes) so they called on strongman Trump to level the playing field. Roman dictators surrendered their temporary power after the crisis passed--until the crisis became internal. To Conservatives, the agenda of the Left (i.e trans doctrine) is an existential attack on all they hold dear, and they are willing to enthrone an Orban for life to prevent it. The Constitution, the Court, Congress are only the velvet that masks what ultimately counts: the iron fist.
I understand the principle argument, I.e., no one judge is completely unbiased. However, it is exceedingly obvious that the Messenger in this case, the same one who chastises the media, is not trying to make a strong case for impartiality in any arena. His principle argument is that anyone critical of me is biased, whereas those who assert support are unbiased. That is the clear message. Has he ever criticized Fox for going overboard or Kavanaugh for suggesting he has issues with the Democrats. So in principle he is correct, but his remedy would be to eliminate all who disagree with him-his definition of bias.
12
If our Constitution weren't so flawed, our Supreme Court would play a much less extensive role in determining the rights of the people and the powers of each branch of government and the federal government as a whole. But the fact that our Constitution is both inadequate to the demands of a modern democracy and hopelessly ambiguous makes us rely on the Court to interpret it to mean what we wish it really meant. Our judges have no choice but to be political because our Constitution leaves so much to discretion. Just look at the Commerce Clause . . . how many of the federal government's essential duties are tied to that one ambiguous clause that can easily be interpreted to mean either that the government's role in domestic affairs is tremendously limited or tremendously broad?
5
I'm thinking that the guy who is commander of the military (and law enforcement?) is in for a surprise.
When my president says anything in regards to supporting our armed forces, I feel he is doing so looking forward to them supporting him, regardless of ....... everything and anything.
The president's 'one-way street of loyalty' could be pointing the other direction.
2
John Roberts, has my vote for Emperor, with his backing of the Citizens United majority. America has thus been in the pocket of corporate America.
3
Justice Roberts may have been voicing the ideal vision of the American judiciary. I'm glad he did.
The ideals of the American experiment have always been under assault, there is always a powerful minority that wants to rule unfettered.
We need voices to continually point us back to those American ideals.
10
Useful background on the emphatic distinction drawn in this article between power and authority (as well as on the claim that the Supreme Court system is the seat of authority in the US Constitution) can be found in Hannah Arendt's On Revolution, Chapters 4 and 5.
3
It isn’t just the Court. Our constitutional design is flawed because the founders did not understand, in fairness didn’t actually see, what extreme, sustained political party loyalty could do. In our era, Newt Gingrich is the main villain, with his conscious destruction of the Congress’ functioning so his party could get power. The founders called this “faction” but thought the splitting of the executive from the legislative and states exercising some autonomy might help control what they saw as a natural tendency for people to accumulate power. But now we are in danger of a single, nationalized party controlling all of government, with special blame on Congress for refusing to exercise any restraint on the executive branch. Democrats now have got control of one part of one branch, hopefully that will be enough to slow down and then we have to try and turn the country in an election, which regrettably includes a stage where it is considered good politics to suppress and deny people the right to vote .
23
Trump is way out of line; "even his own guy [Roberts] says so." Remember that from recess "sports" in elementary school? How sad that our country has devolved to that puerile level.
4
When I was 9 years old I spent my summer binge reading juvenile editions of Greek mythology. Those treatments of the authorities on Mount Olympus (gods!) taught me not to be too impressed with big shots because they are all fallible. The ensuing 7 decades of my American experience and a bit of U.S. history have confirmed and refined that lesson.
I'm a great admirer of Thomas Jefferson's writings but the record indicates he wrote some of his best stuff with fingers crossed behind his back.
Oh my! He was human, like me! How demoralizing.
But I no longer despair of American culture because we don't have one. Instead we are an agglomeration of subcultures that don't much like each other but achieve a modicum of stability as our best and worst instincts produce opposing big shots that succeed or fail in plain sight. The ongoing question is how well and quickly we understand and respond to what we're seeing.
That's democracy, often strange and inelegant, but thus far it has worked, as in 1932 and 2008... and we're still here, even if we're again overdue for a bit of chastening.
12
No matter which President appoints a Supreme Justice, there must be no political strings. Decisions should and I thought "used to be" made on law, intent and integrity. Partisans do not belong in any court let alone the highest in the land.
7
Love him or loathe him, there is no denying President Trump is always prepared to point out when the Emperor is not wearing any clothes. He didn't the same number on Nato I seem to recall.
1
@RomaineBillowes
I meant of course to say He DID the same number on Nato.
@RomaineBillowes
The problem seems to be Mr Trump either doesn't look in a mirror or believes the folk who tell him his nakedness is wonderful brilliant clothing no one else could wear as well as he. And that's a shame.
It's always a good idea to check mirrors and hear those who do not agree with you. Then it takes self reflection to arrive at a somewhat sensible idea of what is real.
Way too many do not do this as way too many don't use critical thinking or research to make decisions.
I suggest Mr. Douthat read the Economist article on how the wishes of an increasingly liberal American majority are being ignored, and overruled by, a conservative minority. First there's the problem of representation, based on population in the lower House of Congress but geographic in the more powerful Senate. This gives rural voters more clout than urban dwellers. When 600,000 people in Wyoming have the same voice as 40 million in California, it's not "democracy." The Electoral College, a sop to slave-owning states of the past, is likewise not democratic. And gerrymandering has created a situation where Republicans win less of the vote but more of the seats in both federal and state governments. Time for a change.
47
@Christy under your system the 600,000 would have no voice compared to the 40 million. What benefit to say in the Union? If some of the smaller states left what would prevent larger ones from leaving? Sounds like a path to dissolution.
@mptpab
"under your system the 600,000 would have no voice compared to the 40 million"
no they wouldn't. If the representation is proportional, each individual would have the same voice as each other one, regardless of where they live.
Right now, that is not the case, individuals in Wyoming have more of a voice than those in California.
@mptpab
Just so I'm clear--you're saying that if we go to direct representation, we're in danger of Wyoming seceding from the USA?
Yes the intellectual acumen and rigor of our sitting president vs. a supreme court justice - I don't think this is an equitable comparison - these are not two emperors - one jester and one emperor, maybe.
15
@ZigZag Jester and Jurist come to mind.
Mr. Douthat misses a very important distinction. There have always been ideological differences on the court and, of course, ideological balances change over time. Otherwise we never would have gone from Plessy v. Ferguson to Brown v. Board of Education. Presidents have had ideologies, as have the senates they worked with. Their judicial appointments have reflected the balance of these ideologies.
Trump, however, doesn't really have an ideology. He is all personal whim. In his view, the people he appoints, whether in his cabinet or the judiciary, are there to serve his whims. He truly believes that he personally holds the allegiance of Gorsuch, Kavanaugh and everyone else he has appointed. Remember how upset he was when Sessions recused himself and wouldn't exercise his powers in fealty to Trump?
So when Trump calls a judge an "Obama judge," he is showing that he truly expects the judges he has appointed to be "Trump" judges and to rule with he personal whims in mind.
36
Douthat’s interpretation of Senator Schumer‘s statement is completely incorrect. Schumer did not say that he supports Robert endorsement of an independent judiciary, so long as Roberts attacks President Trump. Schumer said that he supports Roberts endorsement of an independent judiciary, but disagrees with Robert when he support President Trump.
11
@mccann.tony Schumer called several of Roberts' decisions "partisan." These decisions were handed down before Trump became President. Calling decisions "partisan" doesn't sound to me like he is praising the Chief Justice's view that the Court is independent. Douthat is correct that Schumer's statement is internally contradictory.
2
When McConnell and his Republican supporters in the Senate refused to consider Obama's nomination of Merritt Garland for the Scalia vacancy on the Supreme Court any pretense that our judiciary rises above politics was destroyed. No doubt about it, McConnell's act of refusing to do the Senate's job of "advising and consenting" made a mockery of our system of government. For that act alone McConnell should have been impeached and tried for Treason. But of course that did not happen. So in a way there are Obama judges and Trump judges and Clinton judges. But the disgrace is that both political parties have so degraded the judicial system for their own political advantages; to Hell with what is really best for the entire country.
27
Trump has no problem with a politically partisan court so long as it is filled with his political partisans. He proudly boasts of his pro life appointments to SCOTUS.
5
You're missing an important point here. I recommend you go read the article by John Cassidy in the current New Yorker, asking why Roberts decided to weigh in now on Trump's brazenly partisan attacks on judges who dare to rule against him. The reason is that this time, Trump and his big mouth have painted both Roberts and himself into a corner, because he boasted that the Supreme Court would certainly overturn the ruling from the 9th Circuit. By indicating that he expected Gorsuch and Kavanaugh to follow Presidential orders like the good little puppets he expects them to be, he forced Roberts to either cast a dissenting vote or look to the whole world like Trump's -- er, well, it rhymes with rich, and the autocensor probably won't let me type it. Roberts may have a clear partisan approach to various issues, but he doesn't like being openly outed as a knee-jerk partisan.
33
Americans are taught to believe that federalism and separation of powers are the two crowning jewels of our constitutional system, as they each create competing spheres of power that are believed to check and balance each other. In fact, they serve to make our federal government inefficient, unreliable, and unresponsive to the people. Our federal government is failing and without major constitutional reform we are bound to eventually—and probably much sooner than we can imagine—devolve into autocracy. In fact, we are at autocracy's doorstep right now and I strongly doubt turning away is feasible.
12
@617to416
I disagree with that. The U.S. has survived many problems and I think it will continue to do so.
2
@Alecfinn
It will survive. But maybe not as a democracy.
1
@617to416
I hope you are wrong. I have hope that the U.S. voters wake up and reestablish our country.
But I do have doubts...
1
"Come a crisis, one (probably the one that commands the military and law enforcement) must be master, the other must submit." Master......Submit........give me a break. If we get there it will be war in the streets. Be careful what you wish for.
5
@Joseph
Does anybody really think the military and law enforcement would back Trump in any crisis that Trump himself caused and that jeapordized the United States?
Nobody would back Trump. Not even that weasel McConnell. He would be the first rat deserting the ship to save his own skin.
1
The dominance of the executive and the supreme court over the legislative branch has been a pattern of the destruction of democracy in Central and South American republics. It points to a serious weakness in our system that I think Ross has accurately identified. The Constitution does not do a very good job of identifying the limits of executive power. Some revisions are long overdue.
6
@Todd
Yes, presidential systems seem to devolve more easily than parliamentary into autocracy. This is not to say that parliamentary systems are a foolproof guard against autocracy—they clearly are not—but with the executive and legislature unified, executive power is inherently unable to be exercised independently of the legislature. In a presidential system, where powers are separated, the executive power is absolute in its own sphere and as that sphere expands the executive power can easily overwhelm the legislative.
8
I think that Roberts is acutely aware that this court is now, and will forever be, known as the Roberts Court. He's probably aware that comparisons to the Taney Court are not too far below the surface, and his own legacy is riding on his court's decisions being perceived as legitimate.
It appears to me that among the five "conservatives" he is the only one who feels any responsibility beyond a blatantly political agenda. This concern surfaced briefly when he found a way to rescue the ACA. With Kennedy gone, he is now the swing vote, and Chuck Schumer is well aware of his importance.
We can only hope that for Roberts, his concern for his legacy will trump his own political agenda, at least on some critical issues.
14
So, Ross, what type of justices would you like?
Preferably Conservative to the core handing down their idea of what strict adherence to the perceived intentions of the so-called Founding Fathers.
But actually their intentions, put into context of the 1780s, would be to update the Constitution as the country changed in future times to make make it a living document for future needs.
12
Just a reminder that not only did four of the current so-called "conservative" SCOTUS Justices receive less than a majority of Senate votes for their confirmations, but the Senators who voted against them represent a much larger percentage of the American people than those who voted for.
16
@Cowboy Marine
May I be the first to welcome you to the United States of America, a republic, not a majority rule democracy.
@TD If the courts are increasingly out of step with the majority, this will have the effect of undermining our confidence in the judiciary. The Founders may not have envisioned the power of wealthy conservative donors to engineer a court system that will push through an agenda based on a narrow, "Christian" view of the world. While it is true that our Constitution established our current system of representation, it's becoming ever clearer that the tyranny of the rural minority will eventually destroy the fabric of our civility and common will.
5
We are actually both a republic and a democracy. Your team just can't abide those opening 3 words that prove this: We the People.
3
Ross is normalizing Trump. That is dangerous. exaples in quotes. " But a minority of them are genuinely edifying," and illustrations of his likely world-historical role — which is not to personally bring down our constitutional republic, "but to reveal truths about our political situation," through his crudeness and goading of others, that might be harbingers of the Republic’s eventual end.
4
The reality is that it takes a Republican like John Roberts with a life-time appointment to speak out against the wrong-headed talking points of Trump and other elected Republicans. The elected Republicans are afraid to speak against these once unacceptable ideas. Until the party rejects the divisive propaganda of Fox News and others, we will hear Trump and the electees promoting these lies and divisive rhetoric. Look at the Mississippi Senate race dialogue..
16
Unfortunately, Trump is right. We do have Obama judges. But we also have Trump judges and Bush judges and Clinton judges. Trump realizes that our method of selecting Supreme Court justices is very partisan and that he happily joined the fray with Brett Kavanaugh.
Bar Associations from every state should play a major role in selecting judges. That is the way it is done in many countries. But we in America are much too arrogant to even consider borrowing best practices from other countries. We prefer to fool ourselves in believing that we are the best in whatever we do.
21
@DA Mann
You would think the current dismal state of affairs would shake us out of our self-congratulatory complacency, but I fear not.
6
The Roberts-Trump "debate" (hmmm, talk about degradation of language, cf. Lincoln-Douglas debate) misses the point that judges have values that can have implications for how they decide cases, but good judges also have non-political values that constrain them. Whether liberal or conservative, a good judge follows a statute when its mandate is clear, but may bring her own values in when not. The Supreme Court has a broader scope for policy-based decisions, but even it is bounded, and respected by almost all when it respects those boundaries.
I think Roberts got off to a terrible start when he claimed judges are like umpires calling balls and strikes, and however true that might be for lower court judges, it's rarely the case for the job he was being interviewed for.
What Trump plainly does not understand is that Obama appointees rule against his administration's positions because they are legally in error, not because they think he's a jerk. Roberts could have made the point without the bromide about neutral judges, but for him that train left the station long ago.
15
I agree with Ross' conclusion this time, but as always he excuses the reactionary Republicans by claiming some kind of equivalence with Democrats. Chuck Schumer's tweet about Roberts' statement is not even a little bit like McConnell's outright theft of the seat that Merrick Garland should fill, or the voter suppression and outright election fraud the R's committed in Georgia and Florida - come on, candidates oversaw the administration of their own elections!
A tweet, even a mean tweet, is just words. We'll be cleaning up the mess and fixing the damage to our institutions caused by Trump and his Republican lapdogs literally for generations.
21
@Clearheaded
Just words? Words start and end wars words define how we live and interact with each other ( just look at what is happening today). Laws religion decency fair play are all words that define who we are just as lies disrespect hatred distrust can establish what we think.
So there is no just words...
I think the fact that the Chief Justice, the President, and a member of Congress titter on Twitter is more revealing of a civilization in decline than the tweets themselves.
14
It was terrific to see an Obama judge, a Bush judge, and a Trump! judge on the same page in finding something about Trump to rebuke in the last couple of weeks.
5
Reading between the lines what Roberts is saying to Trump is don’t bite the hand...
2
Note that Trump didn't resort to name calling with Roberts. He may need him some day.
3
Yes, total impartiality by any given judge's philosophy is an illusion; a conservative or liberal judge was chosen by a conservative or liberal group because of his/her position in life; and the result shall be more partisan than some of us would like, even abusive of their privilege sometimes, given we humans are quite corruptible, and 'justified' by the circumstances. But Trump's malevolence, if not idiocy, in denigrating a judge because of a president's choice and the Senate's confirmation, is clear...as well as dangerous,as the public may lose the most precious asset of justice, the trust in our democratic institutions to do what's right. Of course, having a disgusting bully (a coward in disguise) abusing his station, and installing a pluto-kleptocracy, is not helping one bit.
5
Yes, Andrew Jackson was an autocrat who knew that the Sup. Ct. could define the law but it couldn’t enforce it if the executive did’t . He ignored it with the Cherokees. because racism was on Jackson’s side; but Jackson was not about changing our form of government, ditto Lincoln and FDR.
What's occurring now different. Fascism swept the world in the 1930's and resulted in WWII with all of its carnage and devistation. Many American industrialists and bankers supported Hitler and built factories in Germany. A photo of Henry Ford was on Hitler’s desk and Ford and others, like IBM helped Hitler during the war.
In 1940 a man who received medals from Hitler ran for the Republican nomination for president on the slogan “America First,” while London was being bombed.
I remember WWII, in which my older brothers saw combat. That generation is almost all gone. We have forgotten why we fought that war. Fascism has now made a comback in the world with the rise of corporate power and political influence, i.e., big money, much of it from unknown sources.
We are experiencing an attempted fascist coup. The former Republican party, which is what the American fascist party calls itself, has rigged our system so that it takes many more votes to elect a Democrat than Republican and they represent a minority of voters so that there will be single party rule.
The majority want their country back and they e must take it back and to be sure that there is a next election .
29
Actually there are supposed to be three emperors, with Congress being the third. Of course it’s easy to forget that since they have abrogated their responsibilities for checks and balances during the Trump years.
13
@James Palmer
The Founders should have known that triumvirates eventually give way to a Caesar.
1
@James Palmer
Correction: The GOP majority in Congress has abdicated its responsibilities for checks and balances during the Trump years.
5
Mr. Douthat misses the most important distinction in what Chuck Schumer said. It is not that we must agree with the decision; rather, it is the independence of that branch that we must hold sacrosanct. There is a tremendous difference between criticizing a particular decision and invalidating the entire independence of one of our branches of government.
In other words, Trump invalidates the entire branch as political; Schumer validates the co-equal branch of government while disagreeing with politically-motivated actions. One recommends disdain for the branch itself; the other advocates criticism through critical thinking about its decisions.
26
Trump appoints only those he feels will side with him yet tries to delegitimize those judges appointed by his predecessors.
The system IS biased. On both sides. Justice isn't blind. Too often, judges have one eye winking to those who appointed them.
8
I suppose one could say that the law is decanted policy...
It's a reading problem, Ross. You missed the smirk and the jab in Schumer's last line.
" But I am thankful today that he — almost alone among Republicans — stood up to President Trump and for an independent judiciary.”
Read it again and you may notice the independent judiciary business should be taken as a statement about what we do not have under the Roberts' Court so much as it is a statement about what we should, that is, a remark intended to be both an admonishment and a suggested course correction.
Kinda subtle, I thought.
And if it succeeds in prompting Roberts to rein in some of the worst impulses of his bench's corporate-friendly yahoos who have never seen a human right that doesn't look better if it's clothed in garments of Big Money and screened from responsibility by barriers of fine print and limited liability, where's the loss?
Think of the prospect of an independent judiciary as a possible wedge issue Schumer is using to pry the Roberts Court to the Left.
As a matter of power, judging from Roberts and Trumps sparring, the wedge is already there. As a matter of politics, there's not much separating the Robert's Court and Trump's gang of predators.
But if the power struggle can nudge the ideology...ah, the Robert's Court might not turn out to be the disaster it is poised to become.
And actual people might even benefit without having to incorporate first.
Maybe in some states they can even vote.
18
When Obama rebuked the SC at his SOTU speech, Dummy C.J. Roberts sat there and said nothing.
When Trump points out the blatantly obvious, Dummy C.J. Roberts feels the need to assert his blatant lie. Of course the federal bench is filled with Obama judges. The 9th Circuit, for example, is overruled 79% of the time. Dummy C.J. Roberts should be rebuking the lower federal courts for being insane 80% of the time and for refusing to following their oath of office.
3
@Cjmesq0 Just because a circuit is overruled 80% of the time doesn't mean that they are wrong 80% of the time. The composition of the courts indirectly reflects the ideas present in the population as a whole. People who espouse original intent doctrines believe that their interpretations are the right ones and that everyone else is wrong. The original intent of the Constitution was to form a union which would continue the institution of slavery. It took a Civil War to get the 13th, 14th, and 15th amendments. I have a problem with the original intent premises without historical context.
Of course there are judges who are more conservative and more liberal--they reflect the composition of the populace. The reactionary part of the Senate wants to eliminate liberal judges--massive denial of Obama's choices for judiciary. The filibuster and 60 vote requirement was important because it moderated the composition of the courts. It meant that neither side would nominate judges who were totally unacceptable to the other. We now have a system which gives conservatives much more power. They can deny someone as moderate as Merrick Garland and nominate ideologues who are objectionable to the majority. The unbalance in the court is not that it is too liberal, but too conservative. The political branches nominate and confirm the judiciary. Changes in where the majority of people live exaggerate the built-in bias toward small states.
4
The schoolyard taunts emanating from Washington are dispiriting.The 9th Circuit Tweet and Retweet are not elevating the debate. What Trump asserted is outrageous but what else is new.If John Roberts wanted to respond he should have waited until he was giving a major scholarly speech about the role of the Judiciary.He has so much more gravitas, at least in my opinion, he should not fuel the tit for tat which Trump enjoys and employs.
4
Only one of the two people pictured wants to be an Emperor.
8
It may be slightly off subject, but the Republicans and Trump have been running - rather successfully - against Obama for the last ten years. In that way, they're kind of a one-trick pony. Trump was very successful with his - excuse me, "fake news" - campaign to dispute Obama's citizenship (Birtherism).
But like any gimmick, people get tired of it and you need bigger and better bunco schemes. A new war with anybody - the Supreme Court, Macron, Captain Kangaroo - might get a little play for a while, and distract us from what is right before our eyes: We have an incompetent, confidence-trickster president, and a corrupt Republican senate that sees him as a useful idiot.
I don't know where the Democrats - Schumer, for example - are in all of this. Busy shopping for tribe food at Russ and Daughters?
4
I have two points to make. First, Russ has hit the nail on the head at the end of his opinion - congrees could be much better at writing laws that stop giving the judiciary so much room to determine their meaning. Secondly, I am reassured after the recent election, that Trump is more of a Berlusconi phenomonen than a Hitler or Mussolini.
2
When Obama was denied his pick by Mitch McConnell the court became illegitimate.
Their rulings are garbage to me and my family. With the interference in the presidential election Trump is a fake president to me and my family.
The Republicans have done there jobs for the 1% very well. I hate my government.
15
Well I can't agree with my Senator here, not an unusual experience. But I do agree with your take on what's important, which *is* unusual.
Congress abdicated long ago and the Right's plan was to take the presidency and stack the courts. To that end they held back not only a SCOTUS seat, but hundreds of other Obama judicial appointments. Roberts and Alito were both advanced, at least in part, because they've both argued for the "strong unitary executive" interpretation of the Constitution. Kennedy found such as well, but only in specific instances.
When Scalia died Republicans went into panic mode, ignored their Constitutional duties, and backed the moron who rode a wave of hate to their party's leadership and then the Presidency.
I was quite sure Roberts was discomfited with the elevation of a hysterically screaming man, and active Republican operative, being elevated to his court. Chuck forgets the drubbing Roberts caught for not voting with Republicans on ACA, but I don't, and it gives me hope that he'll replace Kennedy as the "swing" vote on the court (aka the guy who closely follows his own judicial conscience -- something 6 others also do but partisans won't believe that; hence the need for a perceived "swing" vote).
But you're correct. Without a viable Congress it'll be moot. Fancy a coup?
3
Tried to read Ross' piece tonight. So many words, so little to say.
5
Mr. Douthat, I'm glad that the Time's token conservative has a brain. You're a much better advocate for bedrock American opinion than the unintelligible musings of the late William F. Buckley and George Wills, (though I wonder if they wrote much for The Times.) Safire had his moments, I will admit. As for Pat Buchanan? Give me a break!
One would expect a similar high level of intellectual savvy from the liberals at your newspaper. Sadly, it ain't so.
The President is a troll. It's best not to feed them.
5
Good article.
Justice Roberts is in an impossible situation. He now heads the Court he desires---dominated by a highly conservative majority that will take a sledgehammer to prior precedents it doesn't agree with and likely be very supportive of new conservative initiatives. But he wants the Court to be seen as reaching those conservative outcomes in a cerebral, non-partisan way--in his framework, umpires who call balls and strikes. And he wants them seem as stemming from a philosophical framework, and not as a function of whether the litigants wear Elephants or Donkeys on their suits.
But, McConnell's power plays on the Judiciary have poisoned the well. The Court cannot regain its legitimacy if the public senses it is intimidated by the President. And it cannot regain its legitimacy if it appears that it is simply an adjunct of one political party.
12
You got that right, Douthat.
It says nothing more than that Trump is an autocratic demagogic anti-democratic jerk.
3
It should not be lost on anyone, no matter how bracing and even refreshing Justice Roberts comments were, that he was appointed for life, and there is nothing that anyone can do to him in response. He takes no risk in making them, unlike the silent and complicit Republicans in Congress, who continue to aid and abet the president at every turn.
7
There used to be a court doctrine called "political questions", i.e. that the federal courts would refuse to decide certain issues on the grounds that those questions were to be decided by the political branches--the executive and the legislature--under the separation of powers built into the Constitution. That doctrine no longer seems to exist. We need it back.
The refusal of the courts to refuse to act is just as important as their actions.
1
Maybe this is the actual plan of the far right, conservative GOP.
They have been grooming their justices for over 20 years. With Mitch McConnell and Paul Ryan refusing to act and thereby giving up Congressional power, the GOP can be make sure whatever issue is pushed TO the courts knowing that 'their' judges will rule as they would like. A nice way to get around the fact that the majority of the citizens bend to more 'democratic' or 'liberal' policy.
The GOP knows that the old white males are a dying breed. Yes demographics point to this and strict popular vote will not support the existing power structure. It could be argued that the GOP is explicitly planning for maintaining their hold by creating this situation on purpose. If they can't 'win' by popular vote then go for electoral college victories and Congressional legislation ignored for more favorable court decisions.
Let's hope this plan fails spectacularly.
12
Elizabeth, We should certainly hope that the Republican plan to pack the judiciary with radical right- wingers fails in a spectacular way. Unfortunately, so far the plan is proving to be a huge success.
1
Since it is obvious that the two parties try to dominate the Supreme Court with their rulings, why not add a justice to make 10 and give each party 5 justice seats to appoint. In the case of disagreement in its rulings all cases revert back to the lower state courts. The country is divided anyway, so we might as well accept this reality. Let state's rights dominate the laws under which people live. Each state must respect the laws of the others within that state's boundaries. The alternative is that one side dominates and in the case of the conservatives that Republicans appoint it will be against the desires of the majority of Americans. What is democratic about that?
5
The founding fathers envisioned a state with true checks and balances, whereas the monarchy they just fled from would no longer have sway over their everyday lives.
That vision has for the most part worked for over 2 centuries until now. Now there are not three equal parts of power holding sway over the nation. There is only the Senate.
In just a few short years, the predominantly conservative Senate has changed the country to almost an imperceptible vision of what the founding fathers had in mind.
They have changed the nature of elections and free speech to unleash money to hold more sway than ever before. They have ignored a Democratic president and his Constitutionally guaranteed pick for a Supreme Court justice. They have pushed through 2 more ultra conservative judges to consolidate power. They ignore a President that is a cancer to the office and the nation.
If there not 67 Senators that are statesmen(women) to threaten impeachment, then everything else is moot. If there are 51 Senators of one party, then they can ram through whatever legislation of their own party, and bring to a standstill that of another.
This is NOT Democracy.
23
All very true and astutely perceived. Nice to see recognition of the essential difference between Power and Authority. And what a laugh, that double-edged accolade of Chuck Schumer!
That said, I think Roberts did right in calling out Trump on his language. Realistically, of course, many justices are partisan. At the same time, that Ideally, they are all non-partisan also needs to be stated—and stated, if possible, by Authority. “Man’s reach must exceed his grasp.” To lose touch with the ideal would make things even worse than they are.
4
Anything to distract us from the gravity of the Trump presidency and the abandonment of Constitutional responsibilities by Republicans. Republicans have two choices: adhere to their oath of office to protect and defend the Constitution from enemies foreign and domestic, or allow America to become a fascist dictatorship.
This is a difficult decision for Republicans. They are allied with racists and those who exploit racism and those whose jobs are tied to institutional racism. They are allied with Evangelical Christians and Conservative Roman Catholics and Jews whose existence hinges on male supremacy and the subordination of women. Finally they are bound to a group of oligarchs who are existentially dependent on life threatening industries: coal, oil, gas, defense, agriculture, and the American healthcare industry that parasitizes diseases applying barbaric economic models on human frailty.
How can Conservative Republicans survive without fomenting hatred or predating human needs, or waging endless wars, and male supremacy? Republican pundits talk about merit, competition, small government and less regulation. But, there is no room for merit among racists and xenophobes, or competition when monopoly patent law and gross inequality reign. Small government and fiscal responsibility are impossible when our military spending is 8 times greater than the next nation and when tax laws promote dynasties. Deregulation is literally throwing gasoline on the climate fire.
15
"But a minority of them are genuinely edifying, and illustrations of his likely world-historical role — which is not to personally bring down our constitutional republic, but to reveal truths about our political situation ..."
This introductory statement is dead wrong. Since the rest of the piece depends on it, that is problematic. Trump is not only revealing truths. He himself is breaking things Take, for instance, our relationship to the rest of the world. We have always practiced "realpolitik." In the past, however, it was often done in the service of, that is, with the long term aim of, spreading democracy, freedom, the rule of law, a Constitutional free press, etc. Trump, however, is changing the aims of our foreign policy. He is now pushing a foreign policy motivated by greed and power alone. In the past, greed and power played a part but they were not the only aims. To be sure, Trump is almost certainly personally motivated current and future payments to the Trump organization from the Saudis. That, however, doesn't change anything. Trump is destroying our relationship to the world, a relationship which has directly improved the wellbeing of billions of people. Our form of world leadership was, by historical standards, relatively benevolent.
Misrepresenting the unfitness of Trump and the harm he is causing is a longstanding Trump Republican lie. Ross should be ashamed of himself for repeating the same lie.
13
@Robert
Fixing a few typos:
"But a minority of them [Trump's tweets] are genuinely edifying ... which is not to personally bring down our constitutional republic, but to reveal truths about our political situation ..."
This introductory statement is dead wrong. Since the rest of the piece depends on it, that is problematic. Trump is not only revealing truths. He himself is breaking things. Take, for instance, our relationship to the rest of the world. We have always practiced "realpolitik." In the past, however, it was often done in the service of, that is, with the long term aim of, spreading democracy, freedom, the rule of law, a Constitutional free press, etc. Trump, however, is changing the aims of our foreign policy. He is now pushing a foreign policy motivated by greed and power alone. In the past, greed and power played a part but they were not the only aims. To be sure, Trump is almost certainly personally motivated by current and future payments to the Trump organization from the Saudis. That, however, doesn't change anything. Trump is destroying our relationship to the world, a relationship which has directly improved the wellbeing of billions of people. Our form of world leadership was, by historical standards, relatively benevolent.
Misrepresenting the unfitness of Trump (that is, downplaying it) and the harm he is causing is a longstanding Trump Republican lie. Ross should be ashamed of himself for repeating the same lie here.
1
"the steady atrophy of legislative power and flight from legislative responsibility, means that America is increasingly governed by negotiations between the imperial presidency and whichever philosopher-king has the swing vote on the court" You clearly have never attended a small town city council meeting.
1
"But if Congress prefers abdication, a two-emperor system isn’t built to last. Come a crisis, one (probably the one that commands the military and law enforcement) must be master, the other must submit. That’s the important message of Trump v. Roberts. Let those with ears, hear."
That extra "emperor" - Chief Justice John Roberts - was standing up for the constitutional rights of our democratic republic, and the separation of powers that forges our system of checks and balances. This might help: https://www.usconstitution.net/consttop_cnb.html - or, for a more immediate refresher on why one "emperor" is a really rotten idea, read today's New York Times story on Viktor Orban.
3
When lawyers no longer can successfully forum shop a case, we will know we have unbiased judges. Lawyers know where to file, if they can. Roberts knows this as well, since the media regularly for years have been reminding us of who nominated which judge. It is hypocritical to call out Trump and ignore the widespread practice of the media, who never refrain from mentioning who is nominated a judge. It is also hypocritical of the media to do this, and then become moralistic about anyone else saying who nominated whom.
3
This editorial is one of the confused pieces of writing about our current political quandary that I've come across.
8
More than Trump exposing a degradation that we know exists, he increases it in his blatant pursuit to be the actual emperor of America as he tramples on the Constitution, John Roberts and anything else that gets in his way. It is time for the institutions of the Republic to act as Brutus.
4
I read Donald Trump's tweet as an Obama judge could not give him a fair hearing because he was appointed by Obama, the way the "Mexican" judge could not give him a fair hearing on immigration because he was Mexican. I agree the court is ideological but that is a different point.
6
In a recent interview, Judge Sotomayer also objected to labeling judges as “ liberal” or “conservative”.
1
If it wasn't so pathetic it'd be funny how jealous Trump is of Obama.
Why I wonder. Because Obama made a success of his life without the advantages Trump had. Obama did it all on merit. Obama was elected twice both times fair and square.
Trump had to cheat his way his whole life.
Hmmm, but rather than trying to do better, Trump whines about Obama and tries to destroy his reputation and legacy for his own selfish and childish reasons.
Sad.
19
Roberts would have done better had he not repeated the idea of "Obama judges" etc. but instead criticized Trump's regular attacks on the institutions that comprise the justice system as well as on other institutions that are the bulwarks of democracy but just happen to impinge on Trump's behavior. Trump's use of the term "Obama judges" came partly from his deep hatred of Obama and his desire to erase his record as President, to encourage his supporters, and to toss just another log of racism on the fire. The other part comes from that far more frightening part of him that seems genuinely not to respect laws that apply to him. He believes that that he should be able to reign freely without constraint. He has supporters like Justice Kavanaugh and Acting Attorney General Whitaker and conservative members of the media who have argued that a President may do pretty much anything that he wants except commit treason, bribery or other high crimes and misdemeanors and even then half of Congress and two-thirds of the Senate must concur that such acts have taken place to end that Presidency. This is the danger that is Trump; he really does believe that laws do not apply to him.
7
I wonder, is it necessary to publish Ross and the like's fabulous stories? Do we not know beforehand that his glibberish talk is nonsense? To put it mildly. I think that we are entitled to truth. You could say that every side of things has to be published, but is that so? In my country, some years ago people thought that they should hear as much of climate deniers as of people that saw where things were going. There are and were a lot of these items, and they did not help anyone. One thing is for sure, we can express or indignation, which is fine, but nevertheless... Dump him, he earns as much with his sad stories.
5
“But to anyone who lived through the Merrick Garland and Brett Kavanaugh nominations......”
In the interest of truth and fairness, I feel compelled to point out that, there is absolutely no basis for comparing the “nominations” of Garland and Kavanaugh other than the fact that both were nominated by a sitting President.
This type of distorted reasoning by Mr. Douthat is the reason why I deeply regret breaking my long-standing rule of not reading his columns in this case.
10
Jonathan, as each day goes by, it seems like Trump doesn't want to learn how to stay away from his racist soul and behave like a normal human being.
No wonder you've chosen the subject about Trump's visit to Mississippi on Tuesday to show his support for another thoroughly racist like him, Cindy Hyde-Smith who is running to keep her Senate seat in Congress fighting against our beloved Dem Senate candidate, Mike Espy.
Only because of Mr. Espy's African-American status Ms. Hyde-Smith mentioned about "being on the front row if there was a public hanging."
So as in your piece titled "Across South, Democrats Risk Speaking Boldly and Alienating Rural White Voters", you've given us a taste of conundrum that our Dem Black candidates feel while navigating through each election cycles in the South.
Most of the Americans including the voters of Mississippi have to realize that Ms. Hyde-Smith did not apologize to her opponent Mr. Espy from her heart in their last debate.
She read from a statement she prepared herself with no real remorse or apology but resorted to mudslinging right away accusing her opponent of twisting and turning her comment "into a weapon to be used against me" which Mr. Espy would never do.
So there is really a real lesson for Trump and the Republicans to learn from this run-off election on Tuesday :
"Change your racist way before the rest of the Americans rise from their slumber. And we true patriots will not put up with your idea of dividing the nation."
2
As a pathological narcissist, Trump sees others only as they relate to himself. If they're not his supporters, they're his enemies.
Maybe at some point it will occur to him that attacking the Chief Justice of the Supreme Court, making him even more of an enemy than Roberts was when he made his initial critical statement, was a bonehead move.
1
Trump remains a national embarrassment produced, sanctioned and consumed by Trumpism. History aside, partisan judges a given, a President assailing the courts and judges, the FBI, Justice Department, allies, our own intelligence community does not warrant even a fig leaf of protection by the GOP or conservatives.
You, yes you and the GOP, a compliant Congress allowed a virulent weed to grow in your sacred ideological garden. The solution eradicate, repudiate Trumpism, jerk it up by the roots.
6
In a “supreme” abuse of its power, the Court named a President in 2000. And the legislative and executive branch acquiesced and accepted GW Bush before all the Florida votes were counted. They had no authority to do that and no army to enforce it - and yet the man they chose became President.
7
@Maxie
My own theory based on no evidence st all us that Gore knew a fight would end up in the House, where he could not win. Rather than sear the public mood for a future Democratic fight, he chose the high (?) ground of civil acquiescence. But yes, it was the stolen election when the Supreme Court was blatantly partisan.
5
Ross did find the perfect quote (Chuck Schumer’s) to illustrate his point. The Merrick Garland and Brett Kavanaugh chapters in American judiciary history have been eye openers. Kavanaugh is either a snarling, creepy, predatory, entitled jock or a brilliant Jesuit-educated legal choirboy depending on one’s politics.
While canvassing to help flip our Congressional seat blue the one thing I personally heard Republicans get angry about was “what you people did to Brett Kavanaugh.” Oddly, when we asked registered Democrats their top issue, it was never SCOTUS related. Nobody mentioned Merrick Garland or Dr. Blasey Ford. The issues were: healthcare, the environment, stagnant wages, affordable housing and unfair tax breaks for the rich.
I think conservatives have had a forty year master plan to control American society through the Supreme Court. That and gerrymandering are their tools to overcome the fact that their viewpoints are increasingly the minority viewpoint on things like LBGT rights, women’s reproductive rights, corporations vs. people, etc. Many articles have been written about conservative organizations formed since the 1980s to focus on identifying like-minded legal minds to strategize and create a pipeline of donors and judicial candidates just waiting for the next conservative POTUS.
One obvious answer to the problem of an increasingly partisan Supreme Court is to nominate centrists, moderates, and people not part of the cult of SCOTUS-obsessed think tanks.
8
"more assertive Congress" sounds like unlimited debt and unlimited immigration, help.
1
Memo to Roberts: You are a lawyer in a black robe, not the chief executive officer of the United States. No one voted for you, Mr. Roberts. Keep your uninformed political opinions to yourself. You have undermined the confidence Americans have in the independence of the judiciary. That will always be part of your legacy...that and renaming Obamacare as a tax increase.
1
As usual, many of the comments are much more reasoned and salient than Douthat’s divagations.
7
Trump thinks the winner should take all, and he hates that he has to bow to people who disagree with him.
Welcome to America, Donald. Get over yourself. You're not the king, and we like it that way.
5
So. Ross Douthat, who reminds us daily that the Catholic faith has never had a more faithful, energetic or orthodox acolyte, take that Francis; contradicts himself, as is his wont, by effectively confessing his admiration for and spiritual union with -- you have been warned, least among us -- George Wallace, Barry Goldwater and William F. Buckley, Jr. Like them, Douthat here implicitly vilifies the wayward Warren court, as conservatives have done since, for trampling on states' rights, not to mention their schedules, by abrogating, in 1954, Plessy. It would have been better, not to mention better judging, indicates Douthat, to have allowed Plessy to fester for decades more, whilst the states decided, on their own schedules, when Jim Crow finally deserved to die. Yet again, a Douthat column reminds us of one of Bill Maher's immortal new rules about "the faithful." This species of follower reminds Maher of the apostate Greenpeace activist who hates whales. Will Douthat explain himself to Charles Blow, or his co-podcasters? This is certain. At a minimum, the Pope awaits an answer from a man who enjoys lecturing the Vicar of Christ. Tell us, Ross; on the subject of Plessy. WWJD.
4
Supreme court:
5 red robes.
4 blue robes.
3
“ The Empire Strikes Back “. And this particular delusional, demented, wanna-be Emperor has Nukes. If that fact doesn’t make you hide under your Bed, nothing will. As for his followers, THEY are the Zombies of the Trump apocalypse. Invading hordes, brainless and easily led. And they crave flesh.
Beware.
2
The illegitimate president’s tweets are indeed evidence. They are evidence to be used before the judiciary to convict him of the treason he has so clearly and blatantly committed, and the corruption of which he is so obviously guilty. The gavel and scaffold await.
3
The Founders of this experiment we call America did conceive of so many ruthless, conspiring politicians at once and in one 'grand old' party.
The GOP, now T'sP, is a party more interested in its own power than anything representing the founders' vision of democracy; therefore, democracy, the constitution, fairness, justice, etc, ... all become irrelevant in their quest for absolute power.
We are here watching Democracy crumble because of millions of bad eggs willing to follow a deranged megalomaniacal narcissist: The Evangelicals are on board because they are anti-American inasmuch as they believe their mythology is more important than the constitution, the overt and tacit racists are on board because for at least 40 years the GOP/T'sP has been race-baiting their electorate to get elected, the uninformed groundlings are on board because they sense the entertainment of carnage and destruction, the American Cowards are on board clinging to their second amendment because they cannot fathom life without their petty illusions of control regardless of how much destruction their false right to bar arms (supposed to be an armed militia) brings to the country as a whole, and the entitled who believe all they need do is the same old thing to maintain their stranglehold on America.
7
Conservatives have finally begun to believe, and act, like liberals: that the Court is a political institution and has usurped the legislature. Roe vs. Wade; Obergefell v. Hodge... these are legislative efforts by the Court. The "shock" to the system is that Conservatives are now playing the same game that Liberals have played since the 1960s - that the Court is political, that the Court is the new legislature. Previously, Conservatives (not Liberals) had acted "as if" there was judicial integrity or judicial independence. But no more. Kavanaugh showed, brutally... that it's all political, it's all raw power. Trump is just bold enough to say this publicly, and with the Senate in Republican hands, the Liberals must endure their comeuppance.
1
I hope Mr. Douthat, in describing the Warren Court as liberal, didn’t forget the Chief Justice Warren was the Republican Governor of California, when President Eisenhower, also a Republican, appointed Warren to the Court. Interesting how times have changed...
10
I think Roberts must realize that he has made Emperor Trump possible with Citizens United and Holder. Does he regret it? Perhaps he was just hoping for a more subtle Emperor who would not put an uncomfortable spotlight on him and his cohorts.
7
"To that centuries-old tension the last few decades have added several more. The growth of partisan polarization has increased the potential ideological hostility between the branches, and raised the perceived stakes of presidential elections and high court appointments both."
Clearly Mr Douthat doesn't know American history very well if he thinks that Jackson, Lincoln, and FDR (his examples) did not encounter partisan polarization.
2
Why did Obama issue so many executive orders just like Trump? When one branch abdicates, the other two get stronger. Congress can't bring themselves to compromise which is fundamental to a functioning democracy. Therefore, the judicial and executive branches started assuming legislative duties. Even Bush 2, for example, presented a humane immigration plan with a path to citizenship. Congress took a bye. More then ten years later, Congress has not addressed this issue. Trump got elected to do what the Congress won't. The parties, with their scorched earth politics, are burning the nation down.
5
Liberal and conservative are philosophical dispositions that we all struggle with in a variety of ways from running your household to accepting a gay brother. Democrat and Republican denotes a rubble of contradictory mumbo-jumbo divorced these days from the philosophies of Plato, Rousseau, Burke etc., by being "Brand" names of the oligarchs and other special interests that push their agendas, from, low tax/regulation-free commerce or conscience freeing attitudes about social justice or health care, to "conservative" vs "liberal" judiciaries. All these issues in the political arena are not argued robustly in any forum identifiable by the citizens, but in Tweets, Facebook and unedited opinion media, which leads away from universal solutions and toward political polarization of the poorly informed (aka us).
On the other hand you have the Judiciary, which is cloistered, shrouded in the long robes of the law, at least in theory. Conservative and Liberal may live there in Hobbs, Locke, Burke et al, in theory, rather than Trump, Clinton, Obama, Reagan etc. The predisposition of the Justices should of course be left at the door, but likely not entirely. Yet, politics following into the cloister is refuted by observation of change in the expected rulings. I like to believe that Roberts is right.
3
There is no two Emperor problem.
A President of a state can take measures on all issues while a President of a court can only take measures when there is an appeal and is limited on stopping. This can hurt a President of a state in some cases but that´s it.
Certainly a president of a court can engange in a cheerful "who-is-the-tweeter-in chief-contest" with a President of a state in the widths of the web but this doesn´t mean both presidents could own equal empires. Twitter in-fights are not relevant in any way. The area of competences of their institutions matters, not the loudness of their tweets, the number of their followers, the score of likes or the intensity of supporting Op-Eds.
A court can block effectively but never govern. The empire of a court is always too small.
2
Trump, like others, doesn't care who actually nominated said judges. 'Obama' is a swear word to them.
6
It’s absurd for Douthat to attack Schumer for pointing out that virtually no Republicans stand up to Trump. They don’t. The opposite. They enable him or, at best, stand idly by.
It’s equally ridiculous to call out Schumer for commending Roberts’ defence of an independent judiciary while disagreeing with his legal opinions. Where’s the hypocrisy, Mr. Bien-Pedant?
One only wishes other SC Justices, liberal and conservative, had spoken up. As long as judges are attacked, Justice itself is under fire.
12
Not everything that those holding powerful political offices reflects an institutional edict. One individual, Justice Roberts, tells another individual, President Trump, in instructional terms, that he is a jerk. Pure and simple. The high falutin analysis by Mr. Douthat jumps to provide examples that do not show Constitutional values, but again two people engaging in food fights. IMO institutional means court decisions, passed congressional laws, and legal presidential promulgations, not the slander and nonsense Mr. Trump espouses too frequently. That belongs totally to him, not the presidency.
5
"But to anyone who lived through the Merrick Garland and Brett Kavanaugh nominations..." Please. Garland never got an interview much less a hearing or a vote. Comparing Garland's and Kavanaugh's nominations is like comparing Santana and Davy Crockett because both were at the Alamo.
6
All you need to know about a political Supreme Court is the Bush v Gore decision or the decision completely against the wording of the second amendment to give every citizen the right to a firearm. Thanks for the dangerous society and world you have handed us you "conservative" Supreme Court.
7
Power abhors a vacuum. The rise of the Roberts/Trump antagonism is the result of the deliberate abdication by the Republican Congress of its responsibility. If Paul Ryan and Mitch McConnell actually existed, Roberts would not have needed to speak. If Republicans had not packed the court with sex creeps, right-wing idealogues and blackout drunks, Roberts would not need to take up the banner of swing vote and moderator.
12
When is someone as a schoolhouse prank going to put a large MAGA hat on top of the SC building. Drones could may be land an inflatable one.
All kidding aside the court will not loose all value in terms of upholding the constitution . Trump would not be able to shoot some on Fifth Ave for instance and claim Citizens United allowed him to do that. But most of the country will be effectively living in a plutocracy for the next 30 or 40 years. The 1% and male rural white voters will be happy. But we, ordinary people, probably have bigger problems as seen in other pages of the NYT: climate change and China's economic rise.
4
What the Chief Justice pointed out was that Judges are expected to be impartial arbiters. Unlike politicians who are voted in on their partisanship and are expected to be partisan. Judges who aren't impartial are simply dishonest or even corrupt.
Douthat's views are simply silly. It's time to transfer him to the National Enquirer.
5
Justice Roberts should have, on Jan 20, 2017, altered the wording of the oath of office just enough so Trump would be, today, NOT the president, having never taken the real oath. No one present except maybe Obama would have noticed, and we could have trusted him to not spill the beans, Right? Oh well, live and learn.
1
Ross only hints at the really interesting dynamic here: the decline and fail of Congress. It is not simply the rise of tribalism that has infected the body politic; it is also plagued by sheer incompetence and amorality … its excessively religious posturing notwithstanding. Blame it on gerrymandering, the harsh glare of public life, the financial requirements of modern campaigning, or any other structural problem. Sadly, Congress now lacks the talent and public interest necessary to legislate effectively; and the most representative branch of government has been reduced to a collection of lemmings, all too glad to follow blindly wherever their donor class leads them.
6
Oh please.
Politicians can be partisan, whiney, and/or hypocritical without openly trying to undermine the legitimacy of judicial decisions. Or the legitimacy of election results. the legitimacy of a minority President, the DOJ. the FBI, intelligence services, congressional oversight, a free press, and every single checks and balances entity that our democracy is built on.
If you look at a single Trump "beef" in isolation, you might think that he is just an ignorant, bad President but operating within the norms of our democracy.
Look at Trump's attacks in full context and it is clear he is an ignorant, bad President with strong authoritarian tendencies intent on damaging institutions and normalizing behaviors in ways that are a clear danger to our democracy.
Roberts understands that danger. You should too.
8
@LT
I agree with your comment. Our tendency is to look at Trump's ignorance one tweet/instance at a time...like chapters in a really awful TV show. And further, some news outlets digest Trump's vindictive groundless tweets and summarize them as normal statements of policy. But a serious analysis actually requires a cumulative approach to underscore the damage his and his allies present to our system.
3
The Emperors have no clothes! The Senate controls the courts, the right and the ‘courts’ will continue the assault to the point where property rights will again be the sole citizenship requirement.
All the lefts fault according to Bishop Douthat. Projection....
3
"But a minority of them are genuinely edifying, and illustrations of his likely world-historical role — which is not to personally bring down our constitutional republic, but to reveal truths about our political situation, through his crudeness and goading of others, that might be harbingers of the Republic’s eventual end." A conclusion predicated on a falsehood is a falsehood in and of itself. Does anyone in his or her right mind believe Trump has a worldview beyond his avarice and desire to enrich himself and his family by abusing the powers of the office of the presidency? He isn't trying to bring down our constitutional republic by undermining our judicial system, the DOJ, and the free press? He is trying to point out the weakness of it? The only harbinger of the Republic's eventual end is Trump himself. Conservative opinion writers can pen a thousand obfuscations in support of Trump but it won't change the fact that Trump is unfit to hold any public office let alone the presidency and is a despicable human being. These screeds always include "what abouts" and are devoid of determining the difference between mistakes presidents of the past have made and the assault on the rule of law, the courts, and the press by a pathological liar.
4
Time to end lifetime appointments to Federal judgeships. Make 15 year terms.
1
Sort of an "out of the mouths of babes (and fools)" moment, huh, Ross? I believe you are onto something with the conjecture of mutiny and martial law. When, if Trump is re-elected, the riots start, they will not be isolated as the race riots of the 60's-70's were. Few states will be spared entirely. Quite possibly, none will. Wyoming, maybe.
2
The Donald actually believes that he alone can run the administrative, legislative, and judicial branches of government, much less the military though he knows nothing about any of them. Just look at how he attacks and picks fight with these folks. Oh yes, then there's that old document that people refer to and keeps getting in the way called the Constitution.
Each time the wannabee dictator opens his mouth he's lying, insulting people, or making no sense at all.
3
The quality of comments on this some of especially high quality. Thanks, Russ, for causing us readers to think.
2
''Come a crisis, one (probably the one that commands the military and law enforcement) must be master, the other must submit. ''
Will Trump manufacture such a crisis?
2
@Lawrence
I believe Trump’s allegiance has been to President Putin the past several years, and his mission is to weaken the United States.
1
I agree with the conclusion. 'He' with the more guns will prevail. There's a reason extremists stock up.
1
What is so strange about Chuck Schumer sometimes agreeing with John Roberts and sometimes disagreeing with John Roberts?
There are times when this Jewish liberal woman agrees with Ruth Bader Ginsburg and the occasional (rare, but it has happened) time I have disagreed with her.
(If Schumer agreed with Clarence Thomas during a dissenting opinion, well that would be more newsworthy :)
2
This column contains an all-too-common rhetorical move by Douthat that I’ve noticed: The inclusion of an example, always referring to a liberal, progressive, or Democrat person, proposal, or view, in a discussion of a problem that is not of the kind he is decrying. In doing this, he suggests that a type of problem, fault, failure, etc. is as much a left/Democratic issue as it is a right/Republican issue.
It is intellectually dishonest. It's also harmful in another sense because he ends up smearing by association someone(s) or something(s) by placing them or it in a category to which it doesn’t belong.
His dishonest move here is that, in decrying partisanship in appointing justices, he puts the Kavanaugh and Merrick Garland Supreme Court nominations, and they themselves, in the same category. They are not both in the category he defines.
“But to anyone who lived through the Merrick Garland and Brett Kavanaugh nominations...”
The Garland nomination was not a partisan nomination. Garland was a deliberately moderate, non-controversial choice by Obama to get a Justice approved by a Republican Senate.
Garland himself is neither a partisan nor an ideologue, unlike Kavanaugh. Nor was he nominated to carry out a partisan, ideological, or a president’s personal agenda. Completely Unlike Trump’s nomination of Kavanaugh.
I don’t know why the Times employs Douthat as a columnist when he regularly engages in sophistry of this kind.
7
In our Judeo-Christian civilization, keeping up appearences is first and last.
Oops, you forgot about the incoming Empress.
1
That you essentially equate Schumer’s statements with Trump’s only reinforces my long held opinion, Ross, that you’re an intellectual lightweight. Errors of false equivalence are among your most glaring fouls, but you exhibit many others in almost every essay. Too clever by half almost every week!
5
Mr. Douthat: again with the false equivalency between Democrats and Republicans.
Please, that's irrational.
4
How outrageously disingenuous Douthat is. Does he think that the readers of this paper are so stupid that he can confuse what Sen. Schumer said with what Douthat wants us to BELIEVE he said? Schumer praised Roberts for standing up for an independent judiciary as a PRINCIPLE UNTO ITSELF. Where are the other Republicans standing loudly against the disgusting attacks on judges as "Obama judges or Bush judges" being made by a president who cares nothing for judicial independence? How many times has Trump spoken vile contempt for judges and threatened their LEGITIMACY? Schumer disagreeing with Roberts on how he comes down in cases is entirely another matter! The specific issue being addressed here is attacking the INDEPENDENCE and LEGITIMACY of the judiciary. That doesn't imply that Schumer is suddenly in love with Roberts or applauds his rulings but simply affirms that speaking up on such an issue that should transcend political parties is to be applauded. Roberts, alone among prominent Republicans and as Chief Justice pushed back against a slanderous charlatan-in-chief and should be applauded for doing so. Or perhaps Douthat doesn't think defending the judiciary against attempts to delegitimize their independent role in American life is undeserving of being defended and that Trump and his horrendous slander of judges as enforcers of our laws should be praised instead?
6
When living by accepting a corrupt and amoral President
is the only way to live, you accept him for a brief period of time in order to survive.
And work night and day to oust him.
Trump will not be here much longer.
4
I'm not nearly so sanguine about the intentions of Justice Roberts. He's just stirring up some very photogenic debate, which will do nothing to restore our democracy, and make himself look good in the process.
Trump is their 'gateway' Emperor, a paper Tyrant they can throw away when they're done with him and pretend that they care about the country they sold out with Citizen's United, and a hundred infamous decisions yet to come.
The real worry is the next guy, the one who isn't a fool, a clown and a knave. And by then we'll be so grateful that he isn't an embarrassment, he'll get the support of many who saw through Trump. In other words, Michael Corleone, not Fredo; and remember how lethal he was.
184
@Sera I think of Roberts' perception that there is no need for voter protection because he lives in a cocoon. He is a conservative Republican for sure.
12
@Sera ... yes, but that was just business, nothing personal.
5
Your comments about “the next guy” underscore a long standing concern I’ve had ever since Trump ascended to the Oval Office. As ignorant and idiotic as he is in so many ways, one of the things Trump has done is map out a blue print for someone much more intelligent, ambitious, and even more autocratic to seize control of this country. It isn’t hard with the electorate so willfully ignorant, self absorbed, or disillusioned to care as our democracy is systematically dismantled
22
The idea of an independent legal system became a joke when The Heritage Foundation began grooming candidates in a years long process for positions on the Federal Judicial Benches. This INDOCTRINATING robs them of any possibility of personal legal philosophy, no wild card opinions allowed. In reaction, the left has had to choose candidates with equally similar but opposite views. No real danger that Kagan or Sotomayor is going to cast a vote with the conservative justices. At least Bader-Ginsburg came to her personal judicial philosophy through years of work in the system. Something strikes me as wrong when we have all eliminated the possibility of a non politicized court.
10
Incorrect. Obama nominated a centrist as both a patriotic and pragmatic gesture. That he did not elevate the refusal of the gop to interview garland--to a gunfight is something we all should regret.
Given that we've been living with the two emperor problem for at least 175 years, if not longer, Douhat's fears seem somewhat exaggerated.
2
Quite so. Very shrewd analysis. But even more important is the glaring fact that money rules. So long as money is perceived as speech (and codified in law as such), the concept of popular government will continue to recede, until it finally disappears. Then the man on the white horse will finally have his day. Remember that Caesar and Augustus won power as popular autocrats, advocates for the people in opposition to the Senatorial oligarchy and the rich.
8
I believe you missed the boat on this one, Mr. Douthat.
At least in my humble opinion.
You wrote, in regards to Sen. Schumer: John Roberts is to be commended for standing up for an “independent judiciary,” Schumer suggests, so long as he is attacking President Trump.
Sen. Schumer was admonishing a president of the U.S. for denigrating the entire American judicial system, one of the three branches of our government, in an effort to make himself look better and to protect his own interests (i.e. the coming report of the Mueller investigation).
If that seems partisan to you, I suggest you try to see the big picture a bit more.
16
@Panthiest It does seem undeniable, though, that Senator Schumer perpetuated rather than dampened the perception that judges should be seen with political labels. In many other countries,most people have no idea whether a judge used to belong to this or that particular party, or none.
2
yes the court has a political basis in that conservative presidents are likely to choose a conservative candidate (same goes for the flip side of our unfortunate coin).
But is that different than a president like trump who makes loyalty to HIM an obvious requirement? So in his book loyalty to his view du jour is more important than justice being delivered to the people.
Let’s be real... it’s a complicated world and anyone who really believes the right answer to all(or any) the countries problems can be neatly summed up by simply picking a (L or R) side is deluding themselves and contributing to the current dysfunction. Roberts seems to me to be saying justice needs to be allowed to be decided on its individual merits...
As for the current state of affairs the author leaves out what should be a very potent voice in the argument and still can be...
We the people..
We are NOT here to be the presidents subjects, or congress or the court. Ultimately we are meant to be the dog, not the tail.
6
Douthat has made clear, if not necessarily in his column, then in podcasts and interviews, that he believes the U.S. Supreme Court from the New Deal through the Clinton presidency, was "too liberal" and, in his analysis, not reflective of the will of the people.
Perhaps that is so, though others wiser than I would argue the point.
Nonetheless, he has also expressed that the current "rebalancing" of the court is essentially a case of historical just desserts, and one he clearly supports.
But like so many of his fellow Catholics, it's hard not to wonder if Douthat is reacting not merely, but mostly, to a single issue: abortion. Certainly he has expressed his view that Roe v. Wade was wrongly decided and a case of judicial overreach.
13
@C.B. Evans
Yes. But also, "judicial overreach" is when liberties are restricted or eliminated to serve one faction over another, NOT when liberties are protected and expanded *despite* a dominant faction desiring to afflict all citizens with its own prejudices.
It's the perverse compulsion to subject the entire country to one's own faction's prejudices that will kill us.
No matter what he believes about the sacredness of a fetus, if Douthat doesn't believe in abortion he should avoid getting one. But it is sheer hubris that requires that ALL humans be subject to his belief.
2
Great piece. I must admit - when I heard Robert's pius opining, I actually laughed out loud. Horse out of the barn doesn't quite do it justice. Pun intended.
1
Thanks, Ross. Now that conservatives, too, agree that political actors inevitably have ideologies we can finally put to bed the ridiculous claims made by conservative judges of "originalism" that texts speak for themselves across the centuries.
10
My respect for Chief Justice Roberts diminished when: he entered Trump's crazy fray and to have asserted what is really a fantasy that Justice is truly blind. We only have to look at the election disaster of Bush/Gore to view reality. Robert's ended up actually supporting Trump's assertion by denying it.
7
Apparently Douthat is unclear on the definition of “contradiction”. There is no internal contradiction by Schumer in both praising Roberts for taking the ignorant Trump to task in calling for an independent judiciary, and calling Roberts out for his partisan rulings in favor of Republican Party goals. If only the self-professed Christian Douthat had been taught to be honest, but it seems neither his church, nor his party taught him morals.
8
The truth is that our political situation is leading us to the end of the Republic. And none too soon. Our Republic is a dismal failure and is heartily dying if not dead already.
The creation of the American style of government was completely misbegotten. The fact that the Founders abandoned a perfectly fashioned, functional, efficient Parliamentary and Prime Minister system is what has doomed America from the get-go.
Congress and the Presidency are completely dysfunctional. The Presidency is a mere celebratory figurehead. Congress is simply a collection of buffoons.
America is in need of a complete razing of its present governmental system.
9
@Reggie
You are exactly right. When I first moved to Canada, I read extensively about the Canadian system of government. Initially, the lack of separation of powers (or the unity of legislative and executive powers) in parliament struck me as a major flaw that was bound to make the government too powerful. Having lived under a Canadian government for nearly a decade now, my opinion is reversed. The American system of separation of powers creates three competing fiefdoms, each absolutely powerful in its own sphere, but with the executive, if not forcefully checked, bound to become the most powerful with an ever expanding sphere of control. In the past, America avoided a tyranny of the executive primarily because the country was too regionally divided and the national government less powerful. But in the modern world we need a strong central government and that will inevitably lead to a more powerful executive. In a parliamentary system, the prime minister (like all ministers) is still a member of parliament and cannot act without parliament. His powers are not separate—they are rooted within parliament—and that lack of independence from parliament is a far better check on the executive than the vain hope that highly fractious legislative and judicial bodies with limited enforcement powers can somehow rein in a unified executive who controls all the administrative functions of the state.
5
@Reggie
I agree. But, as you know, it will never happen. With the election of Trump the complete failure of our system was put on display for all the world to see. We can only hope that at least a sane Democrat will be elected in 2020, and some of the damage to our nation corrected.
If Roberts can be described as an “Emperor”, then he is an oxymoronic reactive one, being only able to exert his imperial ambitions in a limited number of cases that appear on a docket, dealing with specific issues brought by others, that eventually wind their way to a court of nine, not one. Then there is the matter of legal precedence. Emperor Trump, on the other hand, can impetuously create major mischief in any number of unrestrained ways on a multitude of subject areas, which he has already done, including his overuse of the imperial executive order and his narcissistic capacity for ignoring any presidential norms, traditions, or the truth itself. Unlike Roberts, he can and does nefariously, daily wield the power of social media. Hail Emperor Trump! (Is that John Roberts?)
2
Douthat seems to be willing to kick a Democrat straw dog down in any column rather than intellectually entertain how the courts have come to be so partisan. As Republican Congressional caucuses have lost the battle for their pet causes they turn to hope that a court will turn the tide when elections cannot. Supreme Courts have always been political.
The Dred Scott case. A Frustrated Roosevelt trying overcome a conservative court while trying to enact his policies after the depression. The Warren Court adapting social policy to align with the Constitution. Like it or not, the changes have been accepted. Conservatives want to hold back the tide of a wave that continues from that day, or even worse, rubber stamp the policies of a decadent demagogue like Trump
4
It's rare, but it happens: I agree with the president. Judges are biased and their decisions reflect the political philosophy of the president who appointed them. There are Obama judges, Bush judges, and Trump judges, and we can predict their decisions based on their particular bias. Chief Justice Roberts had to respond to the political incorrectness of the president's statement with a shibboleth about justices being independent, but everybody knows the truth. Ironically, the Supreme Court--Justice Robert's court--is the most prime example of the fact. Now, it is up to the media to press the president into admitting that HIS judges are as biased as Obama's and not let him get away with the fake news that liberal judges are biased and conservative judges are independent. Then the truth will be out there.
3
You may agree, but based on what? Not data, surely.
As a rule, judges aren’t free to exert their political philosophy in their rulings. Judges are judged by judges. Those who advance to the appellate level are chosen in part based on how often their decisions are upheld on appeal.
The exception is Supreme Court justices: from them there is no appeal. Kavanaugh was chosen for his rigid philosophy because, not despite, his record of being overturned. He showed a willingness to flout the law for partisan purposes, and that got him the job.
Don’t confuse the media’s habit of noting under which administration a judge was appointed with the actual job of judging. The overt opportunities for politically based decisions are rare, and state decisis still holds.
1
@R. Adelman
If we have reached a consensus that Judges' ideologies reflect the Presidents who appointed them, perhaps it is time to discuss term limits for Judges. Political machinations, such as Senator McConnell refusing to hold hearings on President Obama's Supreme Court nominee, Merrick Garland, should not be rewarded with lifetime appointments.
1
It is clear that we have politicized the courts when we realize that we allowed, with no contest, the Senate to deny a sitting President the right to nominate a Justice; we have allowed Congress to hold up judicial nominations until they have a President they favor.
Congress has ceded the authority to make law - and have to feel the brunt of unhappy voters - to the judiciary. They just work really hard to get the judiciary to make the decision they want.
When we look at the real failure of the nation, two things come to light. The first is the relatively difficult reality that voters are uneducated, finding partisanship easier than critical thinking. The other is that Congress spends more time figuring out how not to be blamed for governance than governing. Right now? They are hoping to blame all the fallout of poor policy, huge deficits and the "need" to overhaul social programs on Trump; they are hoping the Judiciary will do the dirty work of finalizing how those programs die a slow death.
Congress is interested in fault-free re-election, and subcontracting responsibility and blame. That is what is behind partisan judges, and what weakens the nation.
5
Trump's actions continually support a prima facie case of obstruction of justice. Telling the world thru Lester Holt he fired Comey over the investigation, kicking Sessions out for the same reason, installing Whitaker---and evidently making up a story for his son to tell the FBI in corrupt intent.
I don't see any welcome wagon from the Supreme Court. What an insult to attack Justice Roberts, then keep it up. Does Trump still get legal advice? (I don't mean Giuliani.)
1
Most of what happens in Washington is power plays by those in the different branches of government. Even the Supreme Court engages in it. But the worst offenders, by far, are Trump and his Republican cronies, who have decided to enrich themselves on the taxpayers dime. It would be nice if what Justice Roberts said was the truth, but we all know that federal judges from lowest to highest are influenced by their personal ideologies. I can only hope that the ideologies of those Democrats soon to take office will be less corrupt and more invested in the citizens of our country.
1
Sorry, Mr. Douthat, but you are dead wrong on your conclusion that "The Official Washington response to this beef was to accuse Trump of once again degrading important constitutional norms — which in a sense his attack on the idea that judges’ legitimacy transcends the partisan origins of their appointments obviously did." In fact, enlightened Americans throughout this vast country share the concerns expressed by the chief justice. To say otherwise is to rationalize away the conduct that tears at the fabric of our society. Nothing is perfect and the current setup between a corporation-controlled Congress and the ignorant wiles of Trump will come to pass, but to label this episode the "official Washington response" is nothing more than a pathetic unwitting attempt to give Trump credit for something he does not deserve.
2
So to deconstruct Ross today: he usually is a big defender of mysteries unexamined and the value of mystic chords of memory that he says bind the nation together. But not today! No, today Ross sneers at Schumer ‘s “pious tone” about the value of an independent judiciary. And why is that? Track covering I suspect. Conservatives like Ross have bashed the courts since they stopped enforcing the fugitive slave act (ok a slight exaggeration, but clearly since FDR and especially after Brown). On his shoulders and theirs rests the undercutting of respect for the judiciary, which is now reenforced with the lies they tell denying that they have used the courts as a tool to turn massive resistance into the law of the land. The thing is Ross: from the Boston tea party to the Underground Railroad to rise of organized labor to the civil rights movement, clear minded Americans have stood up to and overthrown the dragons of oppression you champion.
3
"Because Trump is too politically weak to win a stark confrontation with the Supreme Court..."
This is not about any weakness, it is about Trump's unwillingness to accept an independent judiciary. From the moment Trump spoke of a "so-called Judge," it was clear he was hellbent on imposing his will over the courts, particularly about immigration. That Trump is determined, and increasingly succeeding, at turning the Justice Department into an arm of his administration, should also be lost on no one. Separation of powers is a joke to Trump.
And Congress intervening? Don't hold your breath so long as Republicans hold the Senate majority. Mitch McConnell orchestrated the theft of a Supreme Court appointment from President Obama, and then smirked about the placement of Brett Kavanaugh, despite all the questions around him. Senate Republicans are just as culpable as Donald Trump in brazenly treating the Supreme Court as a political instrument.
6
Why all this nit-picking and "two-emperor" mumble jumble? John Roberts was merely being a judge. And who better than the Chief Justice to rightfully scold this egotistical, dictator-in-waiting so-called president? What Justice Roberts was saying was that in spite of the politics behind choosing a new member of the Court, a given, a judge has the ethical responsibility to transcend as best s/he can personal politics, and to attempt a fair decision. Does it always work that way? Of course, not. But as many times as we Democrats have pulled our hair out when it relates to what we feel is an unjust ruling (and there have been more than a few), let us not forget that it was Sandra Day O'Connor who was the deciding vote in favor of Roe v Wade. Or even as recently as the Obama administration, it was Roberts himself who helped save the ACA.
But Ross did touch on an undeniable fact. That is that our Congress could actually prevent these tug-a-wars between the executive and judicial branches if they would actually legislate in a bipartisan manner as they are supposed to do. The way it is now they are weak, spineless, and unbending all at the same time. If they remain useless, there will be worse crises to come.
9
There is nothing non-partisan about the Supreme Court, but it is independent; however, what Chief Justice Roberts does demonstrate with his Trump rejoinder is his white priviledge which he shares with Justices Alito, Gorsuch and Kavanaugh. For the chief justice to pretend that judges are not human beings whose legal perspective is not biased by their worldview is just plain naive, at best.
1
When I read Ross I really try to see his points; I try to defend them against my own counterpoints. It is worthwhile. Ross is an honest player and worthy opponent.
I just find I canNOT in the end MOSTLY rule in his favor.
Admittedly sometimes that is because I just don't want to but more often it is because in the analysis I think Ross is cleverly advocating a worldview - a pretty socially and structurally conservative one - that doesn't pass modern muster.
More hierarchical, ritualistic, and traditional than modernity demands.
More "amiable" to the already rich and powerful and to social demagoguery.
More prone to favored class despotism.
I am sure Ross would honestly vehemently protest his innocence regarding these points - but his worldview tests as above.
So while I agree with a lot of Ross's points generally I reject most of Ross's essential worldview.
It engenders models and constructs that are palpably outdated socially and sub-optimal technically - and it highly favors authoritarianism - and Ross shows his colors here.
Roberts was obviously factually spot on and consistent with the higher values of a truly for the People modern society. Conservatives and Progressives should rally around his statement.
Trump was disgustingly in the gutter. He obviously views our institutions as his private institutions. Blatantly authoritarian.
Ross tries to mask the profound difference and dangers Trump's miss-characterization poses.
Why try to legitimize?
1
That message might have been meant more for us than it was for Trump.
There once was an Obama meme, "I got this".
Hopefully, that was Roberts "coded" version, although it's hard for me to completely buy into that idea based upon Roberts' past performance on the court.
He notably compared himself to "an umpire calling balls and strikes" (yeah, right, LOL) during his confirmation hearing.
One thing is certain about this somewhat enigmatic chief justice.
Before Trump leaves office one way or another, he's going to throw a 58 foot curveball in the dirt toward the Supreme Court and we'll all finally get to the chance to see how good of an umpire John Roberts really is.
3
We must believe that it is possible for judges (and Supreme Court Justices) to rule on cases by reference to the law, not to their partisan allegiances. Anyone may be suspicious of decisions that go contrary to their own wishes. But if we begin — as DJT does — by dividing judges into those on “my team” and those on the “Democrat team,” we go a long way toward delegitimizing the court as an institution. DJT’s Manichean spirit ignores any standard except helping his perceived friends — including Kim Jong-un, Vladimir Putin and Prince Muhammed bin Salman — and harming his enemies, including Hillary Clinton, James Comey, Jeff Sessions, James Comey and Ret. General Robert O’Neill who led the team that took out Osama bin Laden. Such a polarizing, divisive spirit is harmful to the country coming from anyone, but coming from the President of the United States, it is horrifying.
The whole framework of our government depends on the possibility that opposing partisans can work together. Nothing requires that they agree with one another, but if they cannot trust each other — if they become not “the loyal opposition” but “the despised Enemy” — then the basis for our democracy dissolves. Lincoln’s First Inaugural ended with a plea to step back from the precipice of partisan absolutism: “We are not enemies, but friends. We must not be enemies.” Lincoln’s plea failed and the result was devastating. We cannot fail again. We must reject DJT’s poisonous partisanship.
3
Yes, liberal praise for Roberts’s defense of an independent judiciary is mildly hypocritical. So what? This ain’t a game of beanbag. Do you want Schumer *not* to leverage every last bit of messaging advantage that comes his way? If he didn’t do everything he could to nudge the Chief Justice toward distancing the Supreme Court from Trump and “Trump justices,” it would be political malpractice.
I’m getting mightily bored with this vein of scolding commentary from the Times’ bevy of never-Trump conservatives, Douthat, Stephens and Brooks. It always boils down to an injunction for liberals to take the high ground and thereby lose whatever fight they’re in. Bad advice, blandly delivered. No thanks.
5
The GOP radicals have made their goal the politicalization of the court since the Warren court because they assumed that was what the liberals were doing, even though Warren was a Republican appointee. Something in their nature sees conspiracy everywhere and that the end justifies the means. They cite ancient philosophers selectively and dress their anti-federal intent in federalists arguements, they believe in the power and truthiness of fake news. Roberts is right to fear the Supreme Court, their brake on sudden change and our moderator of popular passions, will be the loser as prototyrants like Trump take their fakery ad absurdum.
Ross, you have a seriously simplistic notion of left and right, conservative and liberal that you tend to toss about with abandon independent of serious context. You suggest that he Warren Court's and thus its ruling on Brown v. Board of Education was ambitiously liberal? How about fundamentally just in overturning a long-used precedent to justify racial segregation.
4
Douthat keeps trying to turn Rump is something other than a wannabe--and someday maybe an actual dictator. His unending fealty to the Roman Catholic child abusers, despite his occasional cries of horror about them is of a piece with his unending fealty to Trump no matter how often he denies it. Douthat is simply one of those people who always needs someone else to require black and white beliefs. What we cannot forget is that religious fanatics are never supporters of democracy. What people who believe in absolutes and can never see a shade of gray can't comprehend is that there are differences of opinions that are reasonable (and some of those are based on political beliefs about the nature of our government) and that is okay. When those same people are confronted by autocratic beliefs they have a hard time differentiating between their own tendency to always look for someone else to tell them what to do and a dictator's desire to do the telling. Trump wants to destroy our government. Douthat just can't admit that religious conservatives like himself are equally complicit.
2
To my mind, the most insightful comment that the article makes is that Trump is not the cause of the Republic’s degradation, but rather a possible harbinger of its end. But the oft-cited end of the Roman Republic is an imperfect comparison, because it suggests an authoritarian, but successful, future before the end finally comes. I would argue that what Trump represents is worse than that. He is more like the Emperor Commodus, a ridiculous figure, pretending to be a gladiator while allowing the Empire to become so degraded that it never recovered. Ultimately, he was assassinated by his personal trainer, aptly named Narcissus.
2
Schumer's comment was indeed partisan and dumb, but all he had to say was that he disagreed with Robert's "conservative" rulings, and ease of ridicule melts away. Partisanship and rancor were not invented by Trump, but crass degradation of the judicial branch is new. What's next---"judges are the enemy of the people", just like journalists?
As for the role of Congress, the Merrick Garland power grab by McConnell as a Democratic "emperor" looked on in disbelief and Schumer in horror, makes it clear that there are plenty of petty tyrants in our Republic; at the moment, however, we're a little short on philosopher kings....
3
Ross, like all Republicans, you believe that "the military and law enforcement" will have the final say in all matters of importance . . . please know that sane people disagree.
The only way the Judiciary can regain its legitimacy (the sole basis of its authority) is not to be independent - but to be far left.
Independence is long gone, silently eroded by a real life conspiracy.
There is no other way to counterbalance the decades-long campaign by the hard-right Federalist Society to destroy democratic governance. Kavanaugh was their Capstone.
We are under the thumb of an illegitimate court that is far to the right of America. Their rule is far more dangerous to our life, liberty, and happiness than Trump's clownish buffoonery and hateful tweets. Trump is just misdirection.
The stacked Supreme Court and federal Judiciary is the real danger. They have both the power and the authority to lock anyone up, and throw away the key.
2
What Trump is saying is that the Ninth Circuit “always rules against us.” He said “it’s not going to happen like this anymore.” He said he was filing a “complaint.” He accused a “Mexican” judge, born in the US, as prone to be biased against him. So the deal with Trump is that if judges rule against him, they’re bad, evil, wrong somehow. He feels they should always come down on his side. And, he casts blame. He never stops to think that something he wants might be illegal or unconstitutional.
As a businessman, Trump didn’t have to go to court all that much, compared to all the lawsuits he was involved in. He would delay and delay until the person suing ran out of money for lawyers, or he would settle for pennies on the dollar. So Trump isn’t used to having judges make decisions regarding his misdeeds or the wacky bans of his administration. It drives him crazy that someone else can make decisions that go against what he wants to do.
Trump thought he would be the boss of everyone and that everything would go his way. A king, in other words. AND in all this time he hasn’t bothered to educate himself about our system of government. He is completely lacking in curiosity and unable to comprehend or take in new knowledge. No wonder he loves the “poorly educated” as he’s part of that group!
I’m glad Justice Roberts spoke up but I fear that when cases come to the Supreme Court having to do with Trump, what Roberts said will be used against him.
2
It would be nice if Congress lived up to its responsibilities.
Until then, can we please break up the 9th Circuit
into three Circuit courts.
2
Wouldn't it be great to have the Congress decide to investigate the Senate, specifically McConnell, to see if he violated his oath in refusing to provide advice and consent for Garland? I could never understand how, with 11 months left in his term, Obama did not think to just step around the Senate and directly install the judge himself - swear him in, give him a robe and chair, and move on - and see if that did not rouse the lethargic slugs on the right to do something. He could have said, "Well, if your advice is not to do anything, I disagree - my duties require me to put judges on the bench, so even if you don't do your job, I am going to do mine". If the Senate were incapacitated by mass illness, too much Kentucky Fried, or insanity born of too much Fox News, surely we have a way to continue the perfunctory roles of government without those 104 folks? So why not, when they simply refuse to do their jobs because the outcome of acting is not what they prefer for their party, indict them for sloth and impeach them all. We pay them to work - let's get our money's worth! C'mon, Pelosi - investigate McConnell's Senate for willful incompetence!
3
The first tweets are annoying and are meant to provoke, not to present any kind of argument of a thinking man. He has demonstrated that he is not informed on almost any issue and consequently, his tweet thoughts reflect that ignorance.
However, his followers sit on the edge of their seats, waiting for the next slam of some one or some institution of our government. We should not ignore them. We should counter them in the press and media, to insure that the citizens hear the thoughts his mind produces.
I am so tired of his labels of everyone else: "disgraceful, dangerous, weak, etc." Don't let him tarnish America with his denigration of all of its components.
2
And I would like to hear Ross Douthat’s views on Trump’s request on Friday to “leapfrog” the lower courts and fast track the issue of a ban on transgender personnel serving in the military, directly to the Supreme Court, something which has been done only three times in the past sixty-six years for cases considered to be “national emergencies.” No doubt counting on support from the newly-appointed Supreme Brett Kavanaugh and increasingly desperate for a “win” on something, Trump seeks to convince the Roberts court that, as his Soliciter General Noel Francisco says, “transgender troops pose a threat to military readiness and lethality.” We’ll have to hope that Roberts sends him packing!
2
"Congressional abdication." Such a heartwarming phrase.
One party, the Democrats, gets elected to accomplish things, things like the ACA, Dodd-Frank, a economic stimulus package during the Great Recession. The other party, the Republicans, believe the very notion that government in general, and Congress in particular, can and should do something while in office is basely corrupt and fundamentally wrong. So they do not propose anything, preferring to wrap dog whistles and wedge issues in legislative language and speechify loudly while watching this 'legislation' get defeated -- which it must because it is profoundly unserious in its conception and deserves to die. The GOP instead spends all their energy on obstructing the other side. They get elected through fear and voter suppression, and they govern in a stupor. A willful stupor.
The time to apply laughable "equivalency" to the motives, intents and accomplishments of the two parties is over. One party, the Democrats, wants to use government to help the American people. The other party, the Republicans, is the party of rent seekers and atavistic misogynists and those who hate democracy because they are losing control of it. They are fundamentally corrupt and it is time the American people recognize that.
5
Trump's verbal communication sounds like a redacted Freedom of Information document looks. His inability to articulate reveals an inability to process coherent thought and put two sentences together. He bobs and weaves, evading more than enlightening us with his calculated run arounds ..enough to make Barry Sanders envious. And thats when he agrees to answer a question. Isn't America privileged to get answers out of him. The news cycles are enslaved by his tweets to where they deliberately interrupt items like his history of tax frauds before they're resolved, relegating us to a voyeurists understanding of issues in need of further analysis and possibly Justice unattended. The pattern is obvious and worse than its ever been. Are we going to skirt the possibility that he conspired with the Saudis over a murder? The Senate and McConnell aren't going to do anything. Allowing criminality because he's one of yours is criminal itself.
1
It's painful to watch how far Douthat has to go so far to twist the truth to get to the both-side-ism.
Do you really believe that Schumer's very specific mention of 3 highly partisan decisions by the Robert's court are the same as Trump's threats of every judge he doesn't like? Do you not understand the difference between calling out an action vs. calling out the person.
Schumer is speaking FOR disagreement with actions and decisions; Trump is speaking about "doing something" with the people or the court.
Respectful debate is the bedrock of democracy - it's the exact opposite of everything that Trump is twitting! (he doesn't DO anything! thank god for his incompetence)
3
Mr. Douthat rightly notes that the idea of an apolitical judiciary is a fiction. This does not mean that most decisions are politically motivated, or that any action taken by a President will be supported by judges with the same political orientation. It means that, with constitutional matters in particular, judges have the leeway to reach decisions based on desired outcome, which cannot help but be influenced by political belief.
With respect to the independence of the judiciary, everyone is a hypocrite. Trump bemoans the liberals in the 9th Circuit, yet he clearly articulates political litmus tests for his own nominees to the bench. Beyond Brett Kavanaugh's youthful transgressions and blatant lies, the biggest objection to his nomination was his obvious partisanship, made evident by a lifetime of service to the Republican party.
To Trump, conservative judges are fair judges and liberal judges are unfair. To even see and hear Mitch McConnell speak on the topic is to experience a kind of physical revulsion to hypocrisy, and Justice Roberts's decisions, for the most part, provide ample evidence of his own political leanings.
Everyone appreciates the system we have. They only object when they lose. Like everything else in our federal government, the short-term result is far more important to the participants than the strength of the system and the long-term impact on the lives of citizens.
1
Two emperors? But aren’t we talking here about the checks and balances our founding fathers so carefully crafted into our republican form of government to keep the Donald Trumps of American history from crowning themselves king?
The point of Justice Roberts’ statement was not that there are are not some judges who do indeed see their roles as nothing more than supporters of the party that appointed them, but that the ideal of the federal judiciary is for our judges’ ultimate allegiance to be to the rule of law on which our republic is founded and not to the partisan aims of either party. Roberts knows—as we all must if we really think about it—that the survival of our republic depends above all else on a nonpartisan judiciary. Without it, there is nothing to stop a political party determined to remain in power regardless the will of the people from assuming perpetual imperial control.
Justice Roberts an emperor? From where I sit it looks like he is doing his dead level best to keep any would-be American emperor—whether person or party—from assuming that ultimate throne. And he knows it falls uniquely to him to stand for the nonpartisan integrity of the courts, to be the very standard bearer for the dispassionate, nonpartisan rule of law his Republican, Federalist Society backers are trying so hard to displace.
2
Indeed, the court is partisan since Presidents (and by default, their political parties) get to appoint justices for life. However, what has happened under DJT which Schumer highlights in his tweet in support of Roberts' comment, is having the political dial shoved so far to one side. The political aspect of the SCOTUS is one more point for a party to win at all costs rather than a more temperate and thoughtful arbiter of cases.
There are justices and judges nominated by Trump, Obama, Bush, Clinton, etc. That is how the system works.
But these people are free thinking and one cannot predict how they will behave on the bench. Justices' thinking can evolve over time. It would not be the first time if Roberts evolved.
And, a president does not necessarily get when he expects. Eisenhower called Chief Justice Earl Warren, the former Republican governor of California, his biggest mistake. Justice Warren on the bench was not what Ike was expecting.
2
For decades our legislative branch, kept pushing the myth that these judicial nominees were ideological blank slates---even Justice Roberts metaphor of calling balls and strikes was laughable. Having said that, I do wish in thinking about nominees to any court, we could replace the party affiliations with life-experiences. I could care less if a justice is Republican or Democrat, I do worry a great deal about a group of justices that are all male, all white, all the same religion, all from the same private school, and all attending the same university. None of these new nominees can fairly apply the laws of this country to a diverse populace.
2
McCloskey’s “The American Supreme Court” tells a more convincing historical tale than Douthat’s belief that the court ‘s adoption of “imperial” powers is the foundation for the court’s recent “pursuit” of upper middle class values on crucial questions of marriage, sex and childbirth. Professor McClosky illustrates through his analyses of the court’s court decisions over 200 years that the Supreme Court usually follows the injunctions and mandates of the ballot box as it evolves learned doctrine in taking sides on vital social and economic questions. Whether we’re citing John Marshall’s doctrine of judicial review in Marbury or Kennedy’s Oberergfell gay marriage decision or Brown v. Board of education desegregating schools, solid social and political developments served as powerful predicates to final orders. Douthat overstates the “imperial” power of the court and thus ignores its extra-legal bases for critical decisions. The cross fertilization of politics and law may be slow and uncertain, even glacial, but its inevitable. McClosky, “The American Supreme Court,” 1960, 4th Edition 2005, University of Chicago.
1
The Federalst Society has triumphed and Roberts is trying to gas light us into believing that the Court is full of legal scholars who believe in a blind Justice.
This facade will crumble when voter rights cases, gerrymandering, the right of women to control their reproductive lives and workers rights cases come before the Court. Roberts will have to make some personally difficult choices in those cases to determine what history will say about his tenure.
When Obama was President the Republican majority did everything they could to limit his power. However when Trump became President they were his willing enablers.
Hopefully the Democratic House will be able to corral the wild beat we now have as President.
2
forgot to mention that we recently changed to a simple majority for confirmation and THAT has made all the difference. absent that we would still be getting judges more towards the middle then on the left or right.
4
The Court has always been political. But this reality took on a chilling new character under McConnell’s leadership. The abandonment of the filibuster for votes on Supreme Court nominees, and the Merrick Garland episode, where the court openly abandoned its constitutional obligation to advise and consent were dramatic new lows. If and when the history of American decline is written, these Republican initiatives will appear in bold letters.
7
Roberts is a conservative who believes in our government by law and knows that only an independent judiciary could make that possible. If the judiciary was subservient to the political branches it would make the law serve the politics.
Trump has experienced throughout his life that great wealth provided impunity for law breakers and repeatedly evaded laws himself. To him our government by law is a fraud. So as President he sees no sense in being constrained from doing as he wants by legal constraints. He can rely upon his support among Republican voters to neutralize any checks and balances from the Congress. He expects the Courts to stand aside for him because he won election.
In January, the House will begin to push back against Presidential defiance of constraints. Meanwhile, the Chief Justice is already asserting that the rule of law will be demanded by the judiciary. Trump will find himself facing challenges when he tries to do as he likes contrary to law. But it’s also clear that Trump is a warning that inequities in the application of laws poses a serious risk to our republic because it produces people like Trump who see it as worthless.
7
The ineffectiveness of Congress is truly concerning. Even Douthat must admit that much of it can be laid directly at the feet of the hyper-partisan Mitch McConnell.
11
I commend Chief Justice Roberts on his response to President Trump's ridiculous comments about the 'Obama' judge that our great-leader disagrees with. I also think that Citizens United was one of the worst supreme court decisions in history and has been an integral part of the degradation of our government to 'the best government money can buy' and disagree strongly with that and other Roberts-led decisions. But..In this instance I draw the conclusion that Justice Roberts, albeit a conservative justice, does indeed care about the integrity of the court and probably did not see the circus surrounding the Kavanaugh nomination as one that boded well for continuing citizens' respect for the Court and its deliberative processes. Thank you Justice Roberts for a high-profile and totally reasonable rejoinder to an off the rails President who tries to demolish anyone who has the temerity to disagree with or challenge him. Perhaps now some of the GOP (Grand Old Party of Appeasement) will find the courage to push back against Trump's outrageous attacks on the institutions that underpin our democratic republic.
3
For once, Trump said something that is true. There are Obama, Bush and Trump judges.
That is far from being the problem. The problem is that each branch of government wants to be Emperors. It is a drug. It is power.
The most successful branch so far: the "Supreme Court Family". 200 years ago, nobody was supposed to live 70, 80 or 90 years old. Maybe the "Emperor Syndrome" will make Congress put a 10-year term to Justices. Maybe check and balances will work out.
2
This is a thoughtful, albeit sad, analysis, which I appreciate.
1
"Which in turn suggests that in the case of Trump v. Roberts, our president is mostly just exposing a degradation that already exists, acknowledging a truth of our constitutional order that’s badly disguised by official-D.C. politesse."
Oops. I think that the regular folks have been well aware of how political the Supreme Court is since at least Roe v Wade. Since the 1970s, liberals -by this I mean essentially Democrats- made sure that all their judicial nominees were reliable liberals. It was only conservative, establishment DC politicians who believed in the fantasy of a politically independent judiciary. Thus Anthony Kennedy and David Souter: left of center judges that were nominated by Republican presidents.
Anthony Kennedy in particular was able to show this reality in no uncertain terms. Ever since O'Connor and Rehnquist were replaced by Roberts and Alito until June 2018 the rulings of the US Supreme Court on controversial issues were reliably libertarian: conservative on the economic issues, liberal on the social issues. That was nothing but a reflection of having 4 reliably liberal judges, 4 reliably conservative judges and 1 reliably libertarian judge working on these cases.
Perhaps DC insiders really believed that the Kavanaugh circus was due to genuine concern that he was a serial rapist or unfit for office. The rest of us were well aware that the whole thing was about liberals fearing the replacement of Kennedy by a conservative judge.
1
I don't believe Chief Justice Roberts' tweet. He should know better, as should Mr. Douthat.
Yes there are Trump judges, just as there are Trump Justices. In fact, Roberts is one of them. Kavanaugh is another.
I'd say the entire so-called independent federal judiciary is turning Trump. Maybe also the FBI, and the police. People are falling in line.
Coercing behavior via ideology is part of the Republican plan to erode our democracy. We are being attacked from within.
5
"The Republic's eventual end" is as inexorable as it is ineluctable so long as the minority GOP will indefatigably continue to employ crude machinations to seize power.
Cry for beloved country.
3
John Roberts was silent when the Republican party ignored the Constitution for a year and refused to vote on a Democratic president's SC nominee, so he gets no thank you from me or anyone else who believes that the Constitution gives a president a 4-year term. There was a time when the majority of Republicans and Democrats believed in civil rights, women's rights, environmental protection, and Social Security. But then rightists like Ross Douthat attacked all that and undermined the Warren Burger/Theodore Roosevelt wing of the GOP. Conservatives have been waging war against all that is decent and noble in the human spirit since 1932.
6
Shall we all simplify our system by making the executive branch whole and omnipotent as Trump wishes? Yes, the same Trump who has never studied history of our great country and praises himself for all that he has done so far for our country.
I will take a pass. Oh how much we want this nightmare to end.
2
You speak of the "liberal ambitions" of the Warren court and implicitly equate them with, for example, the anti-ACA lawsuits.
Well, what "liberal ambitions" do you regard as bad things? Ending de jure segregation in public schools? Insisting that state legislatures are elected in an even-handed way? Not allowing state legislatures to outlaw contraception? Not allowing public schools to mandate specific prayers to be said by the kid?
I'll leave aside abortion since I know Earl Warren was no longer on the court.
Compare theses "excesses" with the preposterous anti ACA suits. Note that Chief Justice Roberts got a lot of push back, even to the point of hatred, by refusing to go along while the other four "Conservative" justices were happy to.
Are you really going to claim that there's an equivalence here?
2
The idea that Trump hit upon a truth regarding the court and its obvious partisanship is like a child calling an extremely overweight person fat. It’s not polite, but it’s not a lie either. That’s the surprising thing about Trump’s statement. It’s not a lie. What isn’t surprising is Trump’s effort to erode the two emperor “problem” with his appointment of Kavanaugh to the bench. Trump has made it clear he doesn’t want to share power with anyone or any institution and Kavanaugh was selected simply because he views the presidency as Douthat might view the Pope, maybe not infallible, but certainly above the law. I hope Douthat’s conclusion, that “Trump is too politically weak to win a stark confrontation with the Supreme Court” is true, but with the court stacked with Kavanaugh I am not nearly as sanguine about it. The court’s decisions regarding legislative initiatives won’t be the problem. The problem will be when the court is asked to allow the prosecution of the president. That’s when the imperial presidency will take its throne. Then, as Douthat says, the question becomes, what will the DOJ and the military do. Let’s hope they don’t abdicate their power as the Republican congress has done with such self-righteous glee.
1
"Read these sentences over a few times, and relish their internal contradictions. John Roberts is to be commended for standing up for an “independent judiciary,” Schumer suggests, so long as he is attacking President Trump. But when he is issuing rulings with which Schumer disagrees, he is a “partisan” and “highly political” and a “Republican.”
Let's deconstruct this and relish Douthat's lack of awareness.
The idea that Roberts "attacked" Trump with his return tweet is absurd. Roberts respectfully disagreed with the president's claim. If this is what Douthat considers an attack, then he further plays into the hands of the brewing right wing mob.
Second, he condemns Schumer for using the words "Republican", "partisan", and "highly political."
I guess Douthat is unaware that ALL judges are these things. They belong to political parties. They have to run for office, or at least face a retention vote. No, not federal judges, but Douthat should stop being shocked that gambling goes on in Las Vegas.
And while Douthat longs for a more assertive Congress, let's revisit this longing say a year from now after Democrats are in charge and are working to return Congress to its role as the first branch of government.
All Trump has done is to confirm the liberal view, cemented in 2000, that the SC is the third branch of the legislature.
Not a smart move for a Republican.
1
Your editorial is missing the mark, Ross. The real power in Washington is now wielded by Mitch McConnell. He decides who becomes a member of the courts. He decides what bills will come forward for a vote. He decides if the Mueller investigation continues.
Without a doubt, he has told his team to ignore the tweets and whining emanating from the White House. He has determined there isn't time for a debate on criminal justice reform. And, for over two years, he has kept comprehensive immigration reform from getting a full hearing in his body. And there will always be the "victory" of Merrick Garland's doomed nomination. When all else fails, just change the rules.
Trump was, is and will continue to be clueless on both the understanding of the content of legislation and how it becomes law. He is there for the roar of the crowd. McConnell knows this. And while he can't control Chief Justice Roberts, he probably has concluded that controlling two out of three branches of government is a very fine deal.
For him.
1
No one has illusions that a president nominates a Supreme Court Justice who is not aligned with his political ideology. Unfortunately, there is no guarantee that once confirmed those justices will always follow the party line as former presidents have found to their chagrin. But what we are seeing, at least as it concerns the 9th Circuit rulings Trump does not like, is that he wants the judiciary simply to rubber stamp whatever decisions he makes. In other words, he just hates being challenged. Does anybody believe that if Gorsuch or Kavanaugh ever ruled with the four “liberal” judges against Trump that he will spare them a Twitter insult? He would call them sellouts who show him no “love” just as he did the day after the midterms elections delighting in calling out those GOP candidates who lost their races and had failed to prostate themselves before him.
Douthat lost me when he compared Garland to Kavanaugh. The former being denied what would have, under other than the McConnell Congress, been an overwhelming bipartisan choice. The latter being one of the most overtly hyper partisan and vengeful nominees in recent history (putting aside the credible allegations against him which he responded to by lying under oath before Congress and showing an amazingly unrestrained, whiny disrespect).
3
Should it be ..'nor are we about to get one'? Aside from my proofreading, this analysis goes right to the crux. Even Gorsuch pointed out that if Congress didn't like the ruling on Citizens United they could change it. The ball is in the halls of the Senate. Let them get something over the net.
1
Nowhere in the Constitution does it mention factions, or political parties. President Washington, in his farewell address, warned against the tendency. Why? Factions would put their own notions above the unifying principles of this fledgling secular, liberal, and democratic republic. Well, who listens to their father?
America has struggled with the tensions between conservatism and liberalism (small "l") both ideologically and practically from the beginning. I recommend Jon Meacham's book, "The Soul of America," as a primer on the subject. Your article focuses on the power struggle between the branches of government. I cannot address, here, your notion of an impotent Congress on the sidelines of a contest between the Courts and the Administration; however, your characterization of the combatants as imperial is of interest.
“For as in absolute governments, the King is law, so in free countries the law ought to be King; and there ought to be no other.”
I maybe naive, surely so, and the Chief Justice just made a chess move in a political contest warning the Legislative Branch of the Judiciary's power. Then again, he may be considering the admonition of Washington in our brave new world where responsible conservative versus liberal/progressive argument has been usurped by factional tribalism detached from political ideology and any underlying ethical considerations, dedicated only to the preservation of wealth and power.
Strangely, our patently dishonest president is the one telling the truth for once. He should know, as he has done his utmost to pack the court and make it as partisan as he possibly can. The court under John Roberts is as partisan as I have ever seen it and it is ruling consistently in favor of a non-existent Constitution that recognizes only corporate citizens and their money as the legitimate interests of our Nation. Our real citizens are now objects of scorn and victims of tyranny from America's new Aristocracy of stolen money.
1
"What was once a conservative assumption dismissed as extremism by the bien-pensants — that the Supreme Court is a highly ideological institution ,, " The brevity of historic reach of this column can be positively galling at times. If Douthat wants us to believe he actually does not know that this analysis of our third political branch is not as old as "Marbury," and foretold in the Debates, then he ought not to boast of his outlook's divination of it. This shabby technique is so wearing.
Recent positivistic tendencies in the sciences and humanities have taught us that people can be reduced to political, economic, or biological necessities. This is a horrendous thing to say, but history shows it cannot be denied. But to be aware of this means we still have the possibility of pushing away the hour of treason, we still have the possibility to avoid slipping into bestiality. This is what makes up the minute difference between human and non-human. Freedom consists in the awareness that freedom is in danger, that at any instant there is the possibility of becoming less than human. This is true even for Supreme Court Justices, and this I believe is the issue that Douhat’s article is circling around.
If a baseball umpire makes an incorrect call, should Trump be able to reverse the call? It sounds more and more like Stalin, who had no need for impartial judges.
This is nonsense. A conservative, Republican-appointed justice speaks up to support the impartiality of the judicial branch after a liberal, Obama-appointed judge was criticized by the President. A Supreme Court Justice speaking out in such a public manner is remarkable if not unprecedented.
In the face of this non-partisan act. Douthat's take is to agree with Trump's take that the judiciary is a partisan institution.
What an incredible load of nonsense, and written seemingly without self-awareness. All Douthat's examples of the court's supposed partisan bias and imperial instincts are liberal, ignoring the court's many conservative decisions since the Warren court.
So yes, judges have their own ideologies. But fundamentally, the courts do not function as a second emperor because it is an institution composed of hundreds of judges at different levels. Even the Supreme Court has nine justices of different viewpoints and leanings. And, although Douthat seems unaware of this, it is equal to the other two branches of government.
Trump, on the other hand, is one man, who doesn't just think he heads the executive but owns it completely. And when the courts show they are not a wholly-owned subsidiary of the Trump Organization, Trump becomes enraged.
We don't have a two emperor problem. We have a one emperor problem.
1
Merrick Garland was never voted on. The Court is scarred.
1
Many Americans, like Trump, seem to believe democracy has outlived its usefulness and it’s time for an autocrat-in-chief to do what needs to be done. Trump’s desire to rule by executive order and proclamation when his puppet legislative branch doesn’t jump when he says jump is naked autocracy. He then expects judges to fall in line as if he was the ruler of Poland or Hungary. No matter who appointed the judges, their existence is the only substantive check on Donald the First. Americans, like people world over, are willing to look the other way if their ruler can make the trains run on time.
Rather than focusing on partisanship and ideology, I try to focus of what would be a reasonably fair\ and beneficial interpretation of the case. What's best for the two parties and what's best for the country, and regarding most of the salient issues facing the country, we are unfortunately divided and contradictory. Pollution vs. clean. Educated vs. ignorant. Guns vs. gun-free. Prejudiced vs. not. I don't know the answer to it and it's a mess, but I do know it boils down to the obvious observation we hear everyday now: What kind of a country to we want to live in? And obviously many people want to live in vastly different countries than do others. So, on we go.
Nothing has changed public opinion re the rule of law and the independence of the judiciary more than the recent record of 5-4 decisions. If interpretation of legislation and the Constitution is really like "calling balls and strikes" we should expect all decisions to be unanimous or, at worst, 8-1 or 7-2 to allow for the occasional blinkered point of view. The Chief Justice has the responsibility to insure the reputation of the Court by refusing to issue 5-4 decisions. That is why Earl Warren insisted that the verdict in Brown v Board of Education be a unanimous 9-0.
1
Here's the fallacy of Douthat's analysis: he equates ideological bias in judges, which everyone including Roberts knows exists, with personal loyalty to a particular president, and a willingness to serve that president's whims. Yes, we have Democrat and Republican judges, but the prospect of a Trump judge or an Obama judge rightfully disgusts and horrifies us. And yet Trump leads with the expectation that people in his administration -- think Sessions or Comey -- should be "loyal" to him as an individual, to be used as his personal tools, even if it means betraying one's own values or breaking the law. That is what Roberts is reacting to.
389
@Luke: Right -- Trump isn't disinterestedly concerned about the courts exhibiting partisan bias or becoming a third ideological branch of the federal government, as Douthat is. So, Trump is not "just exposing a degradation that already exists," because for Trump it's a different degradation. As usual, it's all about him. His complaint is that some judges are biased against him personally, when they should exhibit deference and loyalty to him as the head of the federal government. That they won't is to him a disgrace.
16
Don't confuse political party with judicial philosophy or decisions. Warren and Brennan were Eisenhower appointees. Bryon White was Kennedy's.
5
... we have DemocratIC or Republican judges ...
3
Good column Ross. Of course the judiciary has a partisan component. I'm certain that the best justices attempt to be impartial, but a completely objective human is a species yet to be found.
If justices were completely objective and not political creatures as well -- or if their approach to the law, particularly constitutional law -- didn't favor one side or the other -- we could simply have a senate approved list of 50 or so judges (from multiple admins over time) and simply randomly select one when an opening occurs.
But that wouldn't work, would it. Or we could try some sort of term limits for judges, or some sort of review where if their rulings appear to systematically favor the left or right, they can be required to be reconfirmed. That won't work either. Even if congress passed it and the president signed it, SCOTUS would rule it unconstitutional.
2
I think Roberts and Trump are on the same side, but Roberts knows that he and his right wing judges will be ruling in favor of wealth and corporations for generations. Trump will be gone at some point even if it is just from the chicken and hamburgers. So, Roberts wants to take this opportunity to pretend that there is an independent judiciary even though he knows there isn't. The American people somewhat believe in judges, although I don't know why, but they may not if Trump keeps harping about how fake they are. The people are going to get a long bitter dose of right wing rulings that further enslave them. That is what is coming. To prevent major push back in some undesirable form, Roberts wants to pretend he and the other judges are able to rule based on law rather than on their own political alignment, even though it is not true.
Douthat is trying to pretend that Trump is being checked, which is ludicrous. Trump is doing the good work of the GOP in a way they only dream they could themselves. The GOP congress people and the GOP judges love them some Trump, even as they pretend they don't.
132
@Chris
The American people somewhat believe in judges for one simple reason: they enforce the rules. We used to be a society that lived by the rules. Not so much anymore.
I was taught two things as a small child in Catholic School in the fifties: firstly, we are a nation of laws. Secondly, we separate church and state.
Today, we have a president who has no use or respect for law--he denigrates the judiciary, and he denigrates law enforcement. I don't even want to get into how warped the idea of separation of church and state has become. I expect Christian sharia law to go into effect any day now.
The easiest thing to do to gain power is to repeat lies over and over again. The weak-minded will listen and believe. Lying is Trump's only talent. The GOP is thrilled with Trump, although they'll never admit it.
It's very simple--this country was an interesting experiment that has failed because people are stupid. That's really about all there is to it.
Funny, after two years of this travesty, I'm rather getting to like the show. Poor Roberts, he's more than a little bit responsible for this mess because of that Citizens United ruling. Reap what you sow, Mr. Roberts...oh, is that Biblical?
10
Well, yes but...
it is Trump's feral nature to attack when he sees a wound in any person or institution that might oppose him in order to further weaken it. He has no interest in healing (to further the metatphor). Obama nominated a Merrick Garland, a centrist as a corrective but we know how that went. Why should we accept that a partisan today must act more so tomorrow? Hyper-partisanship is a "pre-existing condition" to Trump's presidency but the President, who's interest is to rule rather than govern, only exploits it to position himself as the sole source of power and "truth" You can poke around in it Ross but be clear- this is dangerous.
2
Good point. Of course judges have political beliefs, and of course those beliefs can impact their thinking on important decisions. The Constitution is a complex document, open to interpretation. The real question is this: is a judge capable of issuing a decision that does NOT follow his political beliefs when the side he/she would normally be on is NOT Constitutional? The answer should be YES. I think this is what Chief Justice Roberts was getting at. For Trump, it's simply a matter of winning v. losing, "us" v. "them." Trump doesn't just want to enforce the laws, he wants to make them and interpret them as well. That is NOT Constitutional.
9
Here's something else to consider--John Roberts (the new swing vote) will still be on the Supreme Court long after Donald Trump has left the White House.
1
Ross, you ought to cut through the rhetoric and consider the Supreme Court on its merits.
The Constitution created the judiciary headed by the Supreme Court as the third branch of government. The Supreme Court is composed of justices appointed by the Executive and confirmed by the Senate. Only men and women with political credentials sufficient to earn the support of a political party will be appointed and confirmed. That justices hold political beliefs that shape their decisions is precisely what the Constitution envisions.
The only power granted to the Supreme Court is to decide the cases that come before the Court. The Congress funds the federal courts and defines the jurisdiction of the federal courts as it sees fit. The Executive enforces the decisions of the federal courts to the extent it deems appropriate.
The Supreme Court is a political institution that renders decisions on cases that involve political questions. That is the Constitution at work. It is not anti-democratic overreach.
1
@OldBoatMan Your last paragraph is true, but only recognized by the Democrats. Republicans believe that the Constitution is a fixed document, not subject to anything but the "desires of the framers". In their minds, the Court is there simply to make sure that the "original intent" is enforced. And of course, to them original intent seems to mean the policies of the GOP.
1
Of course partisan politicians understand Supreme Court decisions from their biased point of view, as well as most Americans who celebrate or condemn each Supreme Court decision based upon their own bias.
And when partisan politicians have the power to appoint Supreme Court Justices, it is no surprise that the Court develops ideological divisions aligned with partisan politics. Yet only crass politicians accuse a Supreme Court Justice of partisan politics. The more respectful approach to disagreement with a Supreme Court decision involves an intellectual critique of their legal reasoning: politely stating that you don't like the emperor's new robe.
And despite the majority and dissenting opinions that have become the norm, it is rare for a Supreme Court Justice, to expose his or her naked colleagues. But Chief Justice Roberts did just that in his dissent in the Obergefell case when he encouraged people to celebrate gay-marriage rights, but then stated "Do not celebrate the Constitution. It had nothing to do with it."
1
Ross brings up a very important issue. The Warren Court was praised by liberals for its verdicts that were liberal and progressive. But the price paid for those verdicts with questionable legal precedent is now conservatives are using the same methods.
Well said Ross. This dual Presidency will now become a party of four with McConnell and Pelosi having greater power due to the Democratic House. Trump can no longer ignore Senate Republicans as a result. One other thing. I do not agree that this is a time of increased political polarization. Roe v Wade, Vietnam war, Watergate, Reagan Presidency, Contract with America, WMD, Great Recession and the ADA are my reminders of great and passionate debates in the USA. What has changed is the pervasive connectivity via modern communication that heightens our exposure to the debate and allows much more granularity. I think it is healthy for democracy although may lead us to the breakdown of the two party system.
2
I agree with Mr. Douthat that Sen. Schumer's tweet, especially the reference to Chief Justice Roberts as a Republican, kind of contradicted itself.
As for the question of dual imperialism between the President and Chief Justice, I'm reminded of a piece I saw in the Times a couple of years ago about how Marco Rubio arrived in the Senate with the skills and ambition to legislate, but found that doing so hurt him politically.
I don't know what can be done to restore our nation to full democracy. Possibly nothing. But I encourage liberals and conservatives to encounter each other, to listen to each other, in person at the local level. The "echo chamber" model of social media -- and of offline life -- can only divide us further and make us more susceptible to despotism.
6
The unmentioned player here is, of course, McConnell. He wants "conservative", ie, reactionary judges and justices that will always side with businesses, with the elite, with White men, and sometimes White women, over everyone else.
They are there to legitimize 21st century Jim Crow policies of disenfranchising voters likely to challenge the supremacy of White male dominance of the every power structure in the nation, whether it is political, financial, economic, or religious. It is to establish a 21st Century judiciary with 19th Century antebellum-thinking judges.
It is the ultimate thumb-on-the-scales of Justice that McConnell wants, and that his Republican colleagues want. They think it will save them, but it will destroy the Republic, as it nearly did 158 years ago. And to get this, the Republicans have betrayed every single principle they claimed to believe in, claimed to value, claimed to treasure.
When people claim that Trump has moved faster to appoint judges, they forget that from Day 1, McConnell used the Senate filibuster to block most of Obama's nominees, most spectacularly Merrick Garland's, an unprecedented attack on our Constitution, with a fig-leaf justification he abandoned to get Brett Kavanaugh on the Court.
Hopefully, Kavanaugh may take Sotamayor's welcome to heart: You'll be judged by what your decisions here, not what you did before. And, hopefully, he'll realize that he is untouchable, and can reach decisions based on how he views the Law.
25
@Dadof2
I agree, McConnell is the problem. He has done much to destroy my trust in our elected officials. He has hope history judges him as he should be judged.
@Dadof2..The problem, however, is how Kavaunaugh views the law.
@Dadof2
How Kavanaugh views the law is what made the hearings so explosive in the first place. You can't go from urging Ken Starr to squeeze every degrading detail of a consensual affair out Monica Lewinsky, to decrying investigation of a likely attempted rape as character assassination, if you are anything other than a partisan hack. And the "goes around comes around" threat ended any hope Bart will ever mete out justice based on the Law....
I don't know how this spat will end but I know where it's going....at least from the GOP perspective. I don't think even the most delusional GOP politician expected to keep the House. They've won the Senate, increasing their majority. That's a huge win for Trump & the GOP. Control the Senate & you control the most important lever of power: the judiciary. That means the GOP will continue to nominate more conservative justices. The courts are the source of the Republican's power, their blunt instrument in the cultural war that divides us. The GOP is not going to have to worry about confirmation battles anymore. They don't have to worry about appeasing moderates. They will put up whoever they want...the more to the right the better...and get them quickly confirmed. The GOP is playing a long game. Trump will be gone soon. They will still be here. The GOP will wait him out & achieve all of their objectives. Their goal is to nominate 3-4 very conservative Supreme Court justices. Trump has gotten two SCOTUS appointments, he may get more. He’s moved much faster on lower-court appointments than Obama did. The legal arm of the conservative movement is the best organized & most far-seeing sector of the Right. They truly are in it — and have been in it — for the long term goals. Control the Supreme Court, stack the judiciary, and you can stop the progressive movement, no matter how popular it is, no matter how much legislative power it has. Nothing will get in the way of that goal.
24
@Bill Brown Yes. And GOP gerrymandering, with US Judicial branch encouragement, will eventually help the GOP recapture the House. Ultimately the US will be governed by 10% of the population. GOP heaven.
@Bill Brown
And if Hillary runs again 6 yrs of judge nominations.
@Bill Brown...God what a dark, but accurate, opinion.
Mr. Douthat is completely wrong. I realize Schumer goes overboard sometimes, given that he is a politician fighting for his constituency, but he is completely in the right declaring thanks to Chief Justice Roberts. Anyone who follows the Court knows that Roberts needs to take strides to maintain not just the function, but the appearance of independence of the Court, after the debacle that of the Kavanaugh hearings. This mission extends to the lower courts. It is likely that Roberts does not like much of what comes from the Ninth Circuit, but he has to defend the decisions as legitimate, even when he doesn't agree. Roberts acting as a power of good with his support for the Ninth Circuit is nowhere near the same as Trump tearing down the institution for his own political gain. I am sorry, but Mr. Douthat is way off here.
21
What I can agree with here is Ross' mention of the fact that Congress has really spit the bit on fulfilling its primary function, which is to legislate, to create law.
There's a reason that in the Constitution's division of the government into legislative, executive, and judicial branches intended to check and balance each other, the legislative branches get described first. If not supreme, Congress is supposed to be at least first among equals, the starting point for how the people are to be governed.
But as we have seen, when Congress abdicated that responsibility, the other branches have a tendency to fill the gap, "legislating" by executive order or by judicial decision. And because those branches have, at the top, far fewer people involved and less incentive to compromise, some really bad "legislation" can come out of there (i.e., undeclared military adventurism, Japanese internment camps, Dred Scott).
If we want to keep the "emperors" in check we have to start electing to Congress some people who think they're supposed to be there to debate and legislate around "the people's business" and not just the business of their oligarchic campaign contributors--and yes, as I've written about before, I recognize that overturning Citizens' United, making elections publicly funded with a very low limit on individual contributions to any campaign--and no organizational contributions at all--and re-establishing the Fairness Doctrine would all be necessary for this.
27
Here in Arizona, nomination for a supreme court vacancy are vetted by a bipartisan commission which sends three names to the governor without regard to party affiliation. The governor then selects his appointee from the three names submitted to him.
Perhaps a bipartisan panel appointed by the senate majority and minority leaders can serve as the initial vetting panel for a supreme court nominee, where the President is required to submit one name of three (or four or five) to the Senate for confirmation may deflect some of the partisanship and prevent the farming out of the nominees to an organization like The Federalist Society.
6
If there are indeed "Obama judges" and Trump believes that is a problem, then he should do more than point out the problem. He could have taken the first step toward nominating a politically neutral judge for the Supreme Court and to lower courts across the country. He didn't. In fact, he brags about the loyalists he was nominated as a good thing. He and the Republicans in the Senate ushered Kavanaugh down the aisle to the bench, creating a Trump Judge and perpetuating the problem of political judges.
17
Well who knows, at least Roberts expressed a glimmer of objectivity to the role of the Supreme Court. I guess time will tell where this current spat leads,. I'm hopeful Roberts will serve as a governor against the competing executive and legislative branches to hear and decide cases based on law and what ultimately is best for the country.
9
Of course, judges appointed by Republican presidents would more likely lean toward Republican ideology and those appointed by Democratic presidents would lean toward Democratic ideology. However, this is quite different than a judge being classified as an Obama judge or a Trump judge. The fact that Donald Trump classifies them as the latter is quite telling. He views everything through the lens in which he views the world. I have no doubt that Brett Kavanaugh was chosen by Trump not because of his Republican philosophy but because he would be expected to protect Trump from subpoenas or indictments. Therefore, he can certainly be viewed as a Trump judge. I think this is not the same as judges picked by President Bush or President Obama because the judge's vision for America was more in line with their own vision.
20
It is Congress that has sown this field by its partisanship, and more importantly, its refusal to to its job. Over the decades, they've simply "kicked the can down the road," and let the SCOTUS decide, vs. them.
Thus, here we are. Why is everyone surprised?
12
Sadly, it was the Democrats who created the partisan circus surrounding the Court when they rejected Robert Bork (recognized as one of the top constitutional scholars of his generation) solely on the grounds of not liking how they expected he would vote. While this may have seemed a worthy short term goal, it signaled to the world,and more importantly Republicans, that judges were merely extensions of the political process. This, Unfortunately more then anything else, is Ted Kennedy's legacy.
4
@joey8
Opposition to Bork centered on his stated desire to roll back the civil rights decisions of the Warren and Burger courts and his role in the Nixon Saturday Night Massacre, when he fired Special Prosecutor Archibald Cox, who was investigating the Watergate scandal.
Bork was unqualified for the Supreme Court because he supported a criminal President’s obstruction of justice and his antediluvian view of society.
73
@joey8
Robert Bork was given a full hearing before the Senate Judiciary Committee, and he was voted down by the largest margin in history, 58-42. The vote was not entirely partisan. Six Republicans voted against him and two Democrats voted for him.
Bork’s problem was that his record was extreme in many ways, and his arrogant performance during the hearings only served to reinforce the reservations of many who were concerned about what kind of Justice he’d be if confirmed. It seems to me that the system worked as intended in his case. Advise and consent means vetting nominees on their judicial philosophy and temperament, not on the power of their intellect. Bork failed the test.
21
@NA
Having lived though it, let me assure you the "bipartisan" nature of the vote was a fiction. The Republican Senators, showing Joe Mancin-like "political courage", waited to see how things would go, then joined the pack based on their determination of political expediency.
2
Douthat conflates two separate issues: partisanship and independence. Justices, being human, cannot escape the common taint of bias, as even a cursory study of the high court's history amply demonstrates. The Marshall court sought to expand federal power, while its successors in the late 19th century regarded government authority with a certain suspicion. The Warren court favored individual rights, and so on.
All these courts displayed a certain partisanship toward different philosophies of law and government, but that fact did not erode their independence with respect to the other two branches of government. As Linda Greenhouse has noted, once a justice gains his lifetime appointment, other members of his profession exert more influence than do presidents or congressmen. But we all remain susceptible to outside influence, which fact does not make us anyone's lackey.
Calling a justice an Obama judge or a Bush judge misstates the relationship and ignores the rulings which those presidents would dislike. Many observers have noted how frequently presidents (including Eisenhower with Warren) expressed disappointment or disgust with the decisions handed down by justices they had appointed.
Presidents tend to select nominees whose judicial philosophy mirrors their own. That practice does not make the judge dependent on the president, who, in any case, as already noted, sometimes makes a mistake.
14
Of course, Chief Justice Roberts' comment avoided the whole bit where every Presidential election is overtly about the Supreme Court. Doesn't who gets to appoint Justices to SCOTUS become a factor to consider in which party to support?
However, the Chief Justice's comment is most interesting in that Trump's gross ignorance of our system and his penchant for insulting public military heroes is wearing thin on even ex-military and sitting Constitutional officers like the Chief Justice. These are officials normally known for their aloof pretense of modest public positions and "we serve the country not the President.". That they felt moved to speak out in public suggests they are hearing more in the water coolers and hallways of power that concerns them. Their public veneer of neutrality is wearing thin and making their concerns public is a symptom of a frayed system we should pay attention to.
13
The thought was that with lifetime appointments and a reasonable pay the justices would learn from history and provide a check on the political excesses of Congress and the President. That the tempered ambitions of the justices would occasionally recognize was right for the country and the people no matter who appointed them. But we now have an autocratic President that wants and intends to remake the judiciary into a rubber stamp. It has happened before with Trump's idol Andrew Jackson, and it took a civil war to right the ship of state. Any independence of the Roberts Court hangs by a thread.
12
The concept of an independent judiciary is a point of policy based on the Constitutional framework. Pointing to moments at which this concept has ostensibly failed does not obviate the principle, or undermine the significance of the Chief Justice standing up for that principle. The issue with Republicans, with Trump as the most extreme embodiment to date, is that the principle itself, the very concept that when a judge joins SCOTUS they behave in a way that aligns with this high standard is under attack. It is clear the Republicans would much prefer a simple kleptocracy, with the trappings of a democratic republic, but in reality illiberal and autocratic in practice. The happenstance of a Republican-appointed Chief Justice standing up for the principle, and going against the grain of what has become acquiescence to all things Trump by the other independent branches of government, currently enjoying Republican majority, is hope that autocracy rooted in moral-cowardice-as-policy will not ultimately prevail. That Chief Justice Robert's comments appeared to be both unexpected and unacceptable to Trump and the Republicans is case in point that the illiberal ideas have spread deeply into our Nation. Robert's comments should be praised. He stood up while other Republican politicians remain on both knees.
20
@Ghost Dansing Actually Trump just expressed the reality, Roberts objected on the grounds that SCOTUS isn't supposed to be biased. Problem is Democrats have no problem with an 'illiberal' autocratic court, only one that leans Right. The nation is now so divided that even speaking Truth is now seen as dangerous.
1
@Andrew Mason Actually, the president spoke a sliver of truth, with a lower case "t", that judges, like the rest of humankind, come equipped with an ideology. Hot news, indeed. Still, he left out the larger truth, again lower case, that his policies have been rejected on constitutional grounds by judges who occupy the full spectrum of judicial ideology. As for "Truth" with an upper case "T", it resides where the sun does not shine, that is, nowhere at all.
7
@Andrew Mason As always the semi-literate trump misstated the truth. The judge in question was APPOINTED by President Obama, not an Obama judge. There is no evidence whatsoever that there was an agreement that the judge would vote as Obama wanted him to. Roberts was correct in what he said. But also note he did not say there weren't both Liberal and conservative judges in the judiciary.
A major problem is that the constitution is effectively set in stone, there is essentially no capacity for the constitution to evolve in response to changing conditions. It is interesting to compare the US in this regard to its erstwhile colonial ruler, the UK has no written constitution and so can evolve its system of government. Now after nearly 250 years the tyrannical UK is more democratic and more progressive than its rebellious ex-colonies. It managed to abolish slavery a generation before the US did with considerably less bloodshed; it has had two female prime ministers and it provides its citizens with universal healthcare. Perhaps it is time to recognise that the document cobbled together in Philadelphia in the late 18th century is actually not so great and is holding the country back.
15
@John Stroughair Agree. Unfortunately too many legal scholars are happy with this arrangement so that "common law" modifications and flexibility can handle needed changes. But that creates judicial tyranny and is inherently undemocratic. It is sad that in 1787 we chose, mistakenly emulating the UK, an elected king rather than the evolving parliamentary system.
We need a major constitutional revision; there are too many hands in the political pie so that responsibility is hard to pin down.
2
@John Stroughair The British abolished slavery sooner because they had no pressing need for it like the Agricultural South. Since slaves in America were treated more like livestock than humans Southerners came to view them as such and racism is still quite evident in the South. Slavery, the greatest social sin dies a long, slow, and painful death.
1
@John Stroughair- Now that's a comment .Whether people agree with what you wrote or not .... it's interesting and something to think about.
Good point. I, too, thought it ironic that Judge Roberts claimed an independent judiciary, when, in fact, for years it is clear that it is not. On the other hand, I think it was good to have the chief justice rebuke Trump.
21
@Gordon Alderink The judiciary is independent because judges have the independence to rule as they wish with no one telling them how. If they decide to vote with others of like mind it doesn't make them less independent. They could have ruled differently and sometimes they do.
This was an excellent column, however I think Mr. Douthat stopped just short of the actual conclusion required, which is the need to recognize that the United States is becoming ungovernable because of its archaic constitution.
How many aspects of life, whether personal or national, are truly the same as they were when the 18th century document was created by quasi-baronial slaveowners and landed gentry for 13 tiny agrarian colonies with a population that was less than New York City today (it was about 2.5 million)?
I write this knowing that a constitutional convention is impossible and would likely push the nation to the bring of dissolution or civil war. If you cannot pass something as simple (relatively) as an equal rights amendment for women how would you ever agree to re-cut the courts, the senate, the electoral college or the imperial power of the presidency?
This means that your system of government must fail utterly before any real change is possible, whether through the actions of enemies foreign or domestic. In this, US politics are like tectonic plates slowly gathering tension before releasing centuries of built up tension in an historic moment.
26
@D Priest
Well put. Our constitution was designed to be very hard to change, something we may live to regret as a country.
I am sure our founding fathers would be completely dismayed if they were still around.
2
@D Priest The US government isn't becoming ungovernable because of an archaic constitution. The problems are in Congress where one party, the Republicans choose to rule to stay in power rather than what is best for the country as a whole.
8
If the Chief Justice felt compelled to speak out to teach a lesson on the separation and independence of the three branches of our government to a president who does not understand it, it was because Congress was missing in action. Congress is not independent and free to speak and act. It is essentially a lobby, serving the interests of the rich and powerful.
33
@Dodurgali That is only half right. You should have said the Republicans in Congress not Congress as a whole.
The beginning of the end of the Roman empire started with the installation of an emperor with no checks and balances. Having two emperors probably means the decline of the US empire will be twice as fast.
On a more positive note, every movement triggers a counter movement. So, just like the demise of the Communist era triggered the "end of history" in the sense that the Western Democratic model all of a sudden stood there without a contrasting model which led to populism in many parts of the world including the US, this populism will eventually trigger a counter reaction. Democratic and civilized behaviour will again become the prefered way of doing politics vs. the crude and rude tribal populism of the Trumps, Orbans and others of this world.
5
@W The problem is Trump, Orban, and the like are being elected because of the undemocratic and uncivilised efforts of the Left. Remember it is the Left that is saying that respect, manners, politeness, even civilised behaviour is racist, sexist, and various other -ist's. Trump may be rude and crude, but that's better than the alternative which is complete and total barbarism.
Let’s hope so
Our three branch government concept was expected to produce decisions more or less imbued with by Prudence and Restraint for the benefit of the vast majority.
This arrangement has given way to a kind of stage crafted arrangement of warring political parties under the control of international corporations to insure their continued and increasing profitability. Most of what we read and hear about politics is "sound and fury signifying nothing".
The episode of Trump vs. John Roberts is a case in point.
3
There are two very different visions of the future of the United States. They are irreconcilable. The Supreme Court, Congress and the Presidency are had pressed to make the "rule of law" acceptable to one of the partisan visions. The US is indeed a house divided against itself in a way that has only one precedent, the decade preceding the Civil War, that decade also full of rancor about what was or should have been the constitutional rule of law. The legislative great compromises always favored conservative constitutional philosophy (slavery was indeed constitutional), and much of the nation found the constitutional power of the slave states intolerable. With the huge disruptions that will come within the next 50 to 100 years due to climate change the country, irreconcilably divided, could split. Even uniting the nation through war or the demonization of some external and often fanciful threat has lost its power.
2
@John Mack
(slavery was indeed constitutional) ??
In what warped interpretation of the Constitution?
Seek Confederate help.
3
@Socrates If slavery was not constitutional (i.e. not disallowed), then why did we need the 13th amendment?
2
@Socrates
I don’t get it. If not slavery what did the 13th Amenedment abolish?
Article 1, Section 2, Clause 3, otherwise known as The 3/5th’s Compromise, was a northern deal limiting slave states’ representation in Congress. How much more constitutional can you get? The “compromise” reflects nationwide complicity in the inclusion of our original sin in the founding document. This is from The Massachusetts Historical Society:
“...when James Madison's notes from the Constitutional Convention were published in the early 1840s, the truth proved shocking. Many abolitionists who had believed in an antislavery interpretation of the Constitution discovered that the Fathers had traded union and white liberty for black slavery. No longer could (William Lloyd) Garrison and his allies believe in the Union, much less see the Constitution as inherently antislavery. It was, they sadly discovered, a wicked document, the true underpinning for the institution of slavery. "The only remedy in our case," Garrison exclaimed at the close of the July 4 ceremonies, "is A DISSOLUTION OF THE UNION."
In fact slavery was so fundamental to the Constitution that Garrison burned a copy of the wicked thing in a public ceremony calling it “A Covenant with Death and an Agreement with Hell.”
This visionary Bostonian, who also faught passionately for women’s rights, had a price on his head for his “interpretation” of the Constitution.
1
It would appear to me that even though our courts are more political than anyone would like to admit, it doesn't help to call out individual judges as incapable of independent thought based on who nominated them...this does nothing to make our judiciary less partisan. Those who 'tell it like it is' are cynics who are preventing us for standing for what the institution should be. Meanwhile, the conservative effort to provide a hard-right litmus test on every judicial nominee further undermines public faith in the independence of this governmental branch. Let us get back to nominating judges who we are not certain of their politics, so that their decisions are not the products of a political process, and we can get back to trusting their objectivity.
13
The outcome of this conflict depends more on us, on the electorate, than it does on Roberts or Trump. If we want the legislative branch of our government to legislate we need to vote in consonance with our wishes and at present that means recuperating our citizenship, recuperating our vote. Which in turn, at least for the present, means solid democratic majorities both in Congress and in the states, because right now it is the democrats who plainly favor democracy.
Douthat, like the president, has gotten it wrong. The president is overtly hostile to judicial independence because he is an autocrat whose policies have been rejected by judges appointed by every president from Reagan to Trump himself.
In any event, there are not two emperors because there are no emperors. There are citizens, but only if truly it is their wish to be citizens. If there is a refusal of citizenship and democracy on our part, that void will be filled. In the last two years it has been filled by a tinpot wannabee, but that need not be a permanent condition. We are today face to face with 2020.
20
The Garland nomination reaffirmed the notion of a nonpartisan Supreme Court and Democratic support of this notion. The Republican response demonstrated polarization and its source. It is possible to disagree with Supreme Court decisions as with laws enacted by the other side without attacking their right to exist; Schumer is doing this and Trump is not.
Trump would like for the courts and the Justice Department to be as independent of him as similar institutions are in Russia. Schumer has no such desire. The difference is in philosophy as well as tone.
A strict originalist interpretation of the Constitution would require anything not known by the writers of the Constitution or the amendment under consideration to be addressed by a constitutional amendment. An amendment would have to say whether telegraph messages, telephone conversations, radio and television broadcasts, or internet activity were interstate commerce or speech. Deciding that they are is adding interpretation to the original constitution; if the founders did not think of something because it did not exist, there is no way except interpretation to know what they would think. Corporations as we know them now barely existed when the 14th Amendment was approved, so it is an audacious extrapolation to decide that they are persons with rights of free speech. But originalists have no problem with extrapolations they like.
20
@sdavidc9
I am in favour of as many Constitutional Amendments
as are necessary to provide for a more just society.
a) National Health Care.
b) End of Homelessness.
c) Prison Reform.
d) Prosecutors sent to jail for clear misconduct.
e) Equal funding for all public school districts in a state.
f) Three year terms in the House, four year terms in the
Senate with 1/3rd and 1/4th of each chamber being
elected every year. One five year term for the President.
g) 12 years terms for Federal Judges.
h) No wars that last more than 90 days unless
Congress approves.
15
Well put. The Ninth and Tenth Amendments were in direct support of the concern that enumeration of rights would limit them so originalist interpretation is inherently self contradictory. The Dred Scott decision ignored that but the limitation of government rights must employ that. Either of those amendments along with III and IV support the right of privacy. So when someone says they believe in originalist interpretation the first question is whether Amendments count including the Bill of Rights passed under the Constitution. Challenge their framing of the conversation.
@sdavidc9 You have that back to front. Obama wanted to flip a 'Republican SCOTUS seat.' Trump simply replaced a Republican judge intended to be conservative with a conservative. Strange how keeping the court from veering Left is seen as the problem.
How unusual. I find myself agreeing with Douthat on both the problem and the cure.
Our Founders had experience during the Revolution and Confederation with an over-powerful Congress, and abuses of its powers by a host of committee chairmen. It was corrupt, not merely with donor money but with the rawest form of corruption. The separate executive and the Courts were created to hem in that power.
It took about 200 years to go too far, but it has. As we revive Congress, we must also beware, they are dangerous too.
18
Harry Truman's pet phrase comes to mind: The only new thing under the sun is history that we have forgotten. (or something like that, anyway). As Ross Douthat points out this is a situation practically as old as the Republic. The founders had the brilliant idea that to rein in power it had to be shared between three equal powers, the executive, the Congress, and the judiciary. Generally the system works fairly well and people who pay attention to history remember the few times when it did not. We still survived and I expect we will continue to survive. I expect it will be because we, the people, expect it to work and we, the people, do expect that, no matter what tribe the judge came from, when the judge puts on the robe he/she ceases to be, at least at the most important junctures, Obama judges or Reagan judges or whatever tribe is in power. No system is foolproof. Yes, Ross, the president has control of the military and could conceivably use it. But this power is not a new one and I expect us to continue to survive. I just wish the third emperor would be more productive than it has been for many many years, that is the Congress. Unfortunately this one is particularly wretched when it comes to asserting its powers. It has farmed them out to the executive and at a great price to the tribe's reputation. What will put the conservative party back together after all its principles have been trashed in the service of this low life president?
15
The two emperor problem is nothing when compared to America’s rising authoritarian-demagogue problem.
With his criticism of the “Obama judge”, President Trump once again attempts to undermine faith in our nation’s legal system.
I pose the following question to the 90% of the Republican base who have converted the GOP into the Trumpublican party:
Will life in Trump’s America increasingly resemble life in Putin’s Russia?
Michael Idov, a perceptive journalist, notes: “Russian life [is marked by] the all-pervasive cynicism that no institution is to be trusted, because no institution is bigger than the avarice [and self-serving ambition] of the person in charge." ("Russia: Life After Trust," New York Magazine; January 23-February 5, 2017, p. 22.)
Trump's avarice and self-serving ambition are beyond question. Trump’s speech and behavior evidence a dictatorial impulse. He openly disregards the truth and disdains traditional norms of presidential conduct. Trump fosters an increasingly cynical view of politics, politicians, the free press, law-enforcement agencies, intelligence agencies and, most important, the Department of Justice, judges and the law courts.
If Vladimir Putin by his electoral interference had hoped to thoroughly polarize the American public and to weaken America's international prestige and leadership, he has already succeeded beyond his darkest, most Machiavellian expectations.
29
Ross: With regard to Schumer's comment, I think it's possible to register your disapproval of certain judgements and yet applaud Roberts for standing up for the judiciary? Especially when the voice is conspicuously solitary? I do not think the SC is meant to reign in the Executive's worst impulses as a matter of routine, that is Congress's job, but if they won't, then the judges must, most of all to the detriment of their own institution.
6
Well, it is an interesting slant- Presidential power vs Judicial authority, with a sleeping Congress doing naught to balance the whole.
Courts are political- not merely touched by politics. Tocqueville noted that in America all political questions end up in Court.
6
Ross misses (or avoids) a vital element in Schumer's comments. Some cases are decides as a matter of law, and some are decided purely on the basis of partisanship. The Court acknowledged this in Bush v. Gore (US 98), when it took the extraordinary step of declaring that the judgement of the court could not serve as a precedent in future cases. The reason was evidently that there decision was so intrinsically partisan that there was no legal decision at its core. There could be no application of stare decisis, because nothing had been legally decided. Thus the Court itself has recognized that its decisions have strayed beyond jurisprudence into the fields of political choice.
The cases cited by Gore may not have been as glaringly partisan as Bush v Gore, but they were all tainted by their substitution of partisan preference over legal reasoning. Chief Justice Roberts is rightfully concerned about the legitimacy and integrity of the Court, and has angered the Trump wing with several decisions in which he relied on law rather than politics in making his decision. Trump cannot accept that a judge (or an Attorney General) should have a higher calling than partisan loyalty, and apparently Douthat has a problem with this concept as well.
21
@jess
You conveniently ignore that the court decided 7-2 that the Florida Supreme Court had ruled in error in decertifying the election results. The Democrats on SCOTUS wanted to completely disenfranchise the State of Florida and not count their votes at all. The Republicans ruled that the Florida vote had been counted in accordance with Florida law and that it was improper to decide that some new process should be followed to glean voter intent for ballots where the voter had either not voted for president, had voted for two presidential candidates or had voted for the third party candidate on an otherwise straight Democrat ticket.
Like many SCOTUS decisions, it applied only to the facts in the case. They did not make an assertion that anytime a state certified an election that it was not subject to SCOTUS review. You wanted Florida to not be counted, which would have reduced the size of the Electoral College and given the election to Gore.
You would be hard pressed to point to a Democrat nominated justice who ever votes on controversial issues on other than a partisan basis. O'Conner, Souter, Kennedy and Roberts have voted contrary to partisan interests, based on the law. You project Democrat partisanship to Republicans, who have demonstrated consistency in applying the law, rather than partisan positions.
3
@ebmemToo true. I might add the the Constitution does not include a right to vote, the management of elections, even for Presidents, being left to the states.
I favor abolishing the Electoral College and passing a constitutional amendment declaring the right of every adult citizen to vote, with any interference in that right to be investigated and dealt with by the federal government. But that is not the Constitution we have. The Civil Rights Act is weak tea when it comes to guaranteeing the right to vote. But that's all we have.
2
Every president is one crisis away from "definition" by ideologues and historians, so success/failure has yet to be measured within the current administration's context of a "fully functional" white house. A lot of things have been cut and pulled back, but nothing has been put forward yet. It will be interesting if the other branches of government gain strength and perspective that makes this white house more sensible, while questioning its ideals.
The country may see a long line of muted presidents that have tepid boilerplate politics and policy that is not progressive, and a court to go with that.
1
Since Bush v. Gore, 531 U.S. 98 (2000) it is clear that the president serves at the whim of a partisan Supreme Court. Therefore, who gets to appoint the justices becomes crucial for the long-term direction of American politics. Something Mitch McConnell has amply understood.
That's why many Republicans held their noses and voted for Trump. And he has delivered with abundant ultra conservative judicial appointments.
Even if the judiciary eventually accedes in his removal from office, this will be his lasting legacy.
The only consolation has been that some conservative appointees have mellowed on the lifelong bench to middle-of-the-road liberals. Roberts (crucial to the ACA decision) is threatening to be a case in point.
11
@gs
Republican appointees rule on their interpretation of the law. Democrats vote on an exclusively partisan basis on controversial issues.
1
Maybe our Republic, the great experiment, has an expiration date. Maybe we were mistaken when we assumed that all governments as they mature will naturally evolve into democracies.
Maybe it was just a fluke, a hiccup, and its demise is inevitable.
Perhaps all roads eventually lead to tyranny.
20
@Al
No, the dynamic is t the people level. Stupid people elect tyrants, smart and fair minded people protect democracy. Simple as that.
The last 40 years was a conservative massive effort to regain influence ove the people. So the people would not see the government as “theirs”, and therefore easier subject themselves to deception. You could see that in education and in mass media.
What his title, "The Two-Emperor Problem" reveals about Ross Douthat is that he is in denial about the Republican Party's drift towards autocratic, anti-constitutional rule. We saw it emerge in W's notion of the "unitary Executive." It broke into the open when Mitch McConnell stood in the doorway of Congress and blocked Merrick Garland from having hearings. With Trump's election the Rs cast off all coyness and embraced it madly.
As Douthat points out, we will never have two emperors--SCOTUS and the Executive won't cooperate. The Executive will make itself into a tyranny.
But the whole point is that we were never supposed to have one Emperor, but a government of three branches each of which checked and balanced the other two. It's that notion--I'm tempted to call it "quaint"--that Roberts is defending. And it's clearly that notion that Trump seeks to do away with. It's not Emperor v. Emperor, Ross. It's Emperor vs. Constitutional Republic.
I love Douthat's euphemistic reference to "a more assertive Congress." The R Congress has asserted itself quite powerfully, thank you, in the service of would-be Emperor Trump. Let's hope that a Democratic House, and Robert Mueller, can save the Republic from the Republicans.
34
@TMSquared
Ted Kennedy prevented Bork from being confirmed. McConnell prevented Garland from being subjected to the coloscopy of being evaluated for confirmation in a show trial and then being voted down, because there was zero chance that he would be able to gather 50 votes. Had Hillary won the election, there was no one worse she could have appointed.
Obama implemented Obamacare in a way inconsistent with the way the law was written. He waived the employer mandate for 2014 and 2015, he gave 80% illegal insurance subsidies to Congress and their staffs. He gave subsidies to his insurance company cronies that had never been appropriated by Congress. He gave waivers to insurance plans run by union cronies.
@ebmem
Bork got hearings, and a full vote of the Senate. The Senate's constitutional role of advising and consenting on Presidential nominations was fully honored, as it was not in Merrick Garland's case. It's not clear to me why you bring Bork up.
Let's just stipulate that your list of Obama's misdeeds is accurate. They pale, no, they vanish, next to Trump's campaign to make the DOJ into his personal law firm, placing him above the law, next to his blithe serial and massive violation of the Emoluments clause. I could go on.
Ross, I haven't got the faintest idea what you're talking about. So please just answer me this. Is McConnell's feverish stacking of the courts with Federalist Society nominees in line with the Founders' ideal that the nation at large must always be assured that justice is blind? And is not only done, but seen to be done?
26
@We'll always have Paris Judges are supposed to adhere to the Constitution not impose their own partisan interpretations. That being the case Federalist Society nominees are in line with the Founder's ideals whilst Obama's court stacking is contrary to both their ideals and America's best interests, but those on the Left won't care. It's all about power and privilege, and the Constitution is a barrier to what the Left want.
A super majority approval of judges to the supreme court helped keep the Supreme Court less partisan.
Now with a simple majority vote in the Senate for confirmation, the independence of the Court is seriously in question.
With that, plus Citizens United and gerrymandering, we are witnessing the end of the United States republic.
53
I could not have said it any better. I add the existence of an antiquated and bizarre electoral college to your list.
3
Chief Justice Roberts could have spoken up earlier in Trump’s tenure – prior to the outcome of the mid-term elections. Had Justice Roberts done so, Trump would have twitter-ranted against him and the effect, the optics, would have effectively marginalized Justice Roberts’ voice for a long time to come.
Now, Justice Roberts sees the mid-term results and is correctly interpreting them. Our nation is entering a revised political era and the courts’ role is to keep it aligned with our Constitution and our hard-won principles of representative democracy. The people who flipped the Republican seats were not old, wrinkled, religious tyrant, monied, monuments-to-the-past, white men. They are culturally diverse and female. It’s what demographics would predict even without Trump’s outrageous behavior and Republican Congress’ spineless, silent approval.
Besides defending the critical importance of our independent judiciary so they can be an effective guidance in era of changes ahead, Justice Roberts was telling his Supreme Court colleagues how they had to behave if they’re to maintain their role, even if begrudgingly obeyed nationally, as umpires in our Nation’s government.
The Roberts court will soon decide profound issues involving the Presidency and fairness in American social behavior. Trump, our noisy, empty barrel President doesn’t get to characterize our nation’s courts and how to see their decisions. That’s our courts’ responsibility.
22
The importance of this right leaning court, is it's voting rights decisions. It disallows, through voter suppression rulings, for a truly citizen led country. Trump does indeed see what is happening, as does Mr. Douthat. I'm not sure either recognize it as part of the plan. That in turn allows for rulings like the recent Ohio v AmEx, that give the affluent, even more economic power to keep their power train rolling.
Perhaps Senator Schumer should have said Justice Roberts, may be having second thoughts.
6
The Affordable Care Act was a creation of the legislative branch, worked out over a two year period of extended debate, negotiation, and compromise, opposite of a "retreat from legislative responsibility." The Roberts Court barely sustained the Act (for which Roberts was lambasted as insufficiently partisan); the ruling nevertheless cut back the nationwide reach of Medicaid, thus undermining a core legislative plan. So what's the legislative abdication? Looks to me like judicial overreach.
15
Worry not. All empires fall eventually.
Accelerating the fall of this empire may be the most environmentally beneficial thing any emperor has ever done.
23
The eventual demise of the empire is face-glaring. It is only in this empire that a minority is foisted on the majority to rule.
Progress is impossible if we continue to do things the same way we've always done them. Alas across the parapet those with the eyes to see, discern all the telltale signs of collapsing empire.
7
The court system should not be used to correct political ills, unless they are illegal or unconstitutional.
Political ills should be corrected within the political system.
Checks and balances works when all components do not overstep their mandates and roles.
Otherwise, and this is the case sometimes outside the US, there is endless energy wasted on acrimony between courts, the legislative branch and executive (or their equivalents), each pulling for more power.
The Chief Justice is just that; he might lead the court, but no more than that.
5
Laws are made by and interpreted by human beings. This makes laws in many respects not unlike other creations of human beings such as artworks and scientific theories [we take what we call "laws of nature" to be different from legal rules made by human beings but as principles of action to be followed by them].
There are plenty of thoughtful, responsible examinations of whether we are to judge the value of artworks and scientific theories simply or only in terms of the political predilections of those who produce them. Perhaps Chief Justice Roberts was hoping that we might keep in mind the deep insight that while humans make and interpret laws, it doesn't follow that what they thereby are doing must simply reflect their own deep-seeded desires, dreams and hopes. That doesn't automatically rule out the poison of self-interest, but it does ask us to question whether here, as in other departments of human life, we must rule such poison in [especially when someone appointed to a position in the DOJ or SCOTUS has broadcast a commitment to the idea that Presidents are not subject to the same constraints as ordinary citizens]. Thinking is never optional for citizens in a vibrant democracy.
Ross, I differ on Trump's tweets. I think Trump's tweets provide a raw and direct insight into the way Trump thinks, a kind of Twitter pipeline that's always set to "tell us how you really feel..." when Trump blasts out a tweet-storm at 3AM. And I think, taken of some time, and with a strong stomach required, Trump's tweets reveal that he definitely has some ideas and desires that directly threaten our Constitution and our democracy and republic. The aggregate tone of Trump's tweets is that he would be very happy with direct rule by decree, and has sold that idea to his 'base' such that they would probably ignore the fact that this country fought a revolution to get rid of a king, and will not welcome one, even if achieved through the pretense of an election and Electoral College victory. Trump is very happy when the Legislative branch kowtows to his whims, and very happy when the Judiciary branch is complaisant to his decrees, and upset when either branch stands up as equal to him. This is revealed in tweets over and over, the direct pipeline to Trump. The most important thing in Trump's world is Trump, first, last, and always. The oath he swore to the Constitution - not so much, when it gets in his way. The Judiciary stands in his way, and stands for the Constitution, when it does its job well. That Trump's decrees so often threaten the Constitution, and fail the Judiciary's review, must make any real patriot consider Trump's intentions.
60
@Jim Brokaw Well said. Does this place Kavanaugh and Gorsuch in a conflict of interest? Or, are they in his pocket?
1
@jimbrokaw
Ah, Jim I would agree with you, but then both of us would be wrong.
Courts are political partisan tools.
Anybody who says different is a fool.
(That rhymes. Read this Supreme 0 Roberts. )
Examples
1. Earlier described idiot Supreme decides BO care is legal because the individual mandate is a tax ????? What?
Tax bills can only originate in the House.
Earlier described partisan, political tool wanted BO care to flourish and had to find some way to accomplish this liberal socialism.
Health care is a privilege not a right.
2. If the courts and judges are not liberal or conservative (per earlier described idiot) then why oh why do liberals get upset about the latest Supreme Kavanaugh and why do conservatives get upset about RBG saying she will have to stay on the court for 5 more years so she can finally rest after Trump’s court cases and home are long gone????
Everything is political especially our so called Judges.
I bet that this does not get published.
Long Live Trump!
I have often noticed that when The Times publishes an article about a significant federal court decision, it typically identifies the president who nominated the judge writing the opinion. Chief Justice Roberts may have stated the ideal, but the reality is that presidents generally have expectations of the judges and justices whom they nominate. President Eisenhower regarded his nominations of liberals Earl Warren and William Brennan to the Supreme Court as the two major mistakes of his presidency.
5
How strange, Charles. In the Times editions I read the nominating president is rarely named in news articles about SCOTUS rulings.
Re Eisenhower, you may want to look at "Shattering the Myth about President Eisenhower's Supreme Court Appointments" by Michael A. Kahn published in
Presidential Studies Quarterly.
Where did this idea come from that the supreme court is never touched by political issues? Remember the biases of the courts in the years of Jim Crow? How about the courts before women were give the vote, the claim to equal protection under the law, and the right to privacy between a woman and her doctor that are the basis of Roe v. Wade? Courts, like legislatures, and executive branches are human institutions governed by human weaknesses as well as strengths. The Constitution is a text subject to different interpretations just like other texts. Judgments based on a long history of case precedents are a bulwark of the constitutional system. Trump should leave the judicial branch alone.
14
Are you not signing to the choir by urging Trump to leave the judiciary alone. He had neutralized the hitherto GOP dominated Congress. The Senate is now in comatose if not hypnotized
There was a time, not so long ago, when the SCOTUS was certainly ideological, but it was less partisan. Back in the day when it took a supermajority to make an appointment as Justice, those whose certainly had beliefs that affected how they read the Constitution, but they were more than mere party hacks. further, they had to be acceptable to at least some members of both parties; a bipartisan appointment was the only kind possible. As a result, Justices were capable of growth while on the bench; the weight of the responsibility and the awareness of their authority, could and often did expand their understanding of the law.
Today, the Senate under Mitch McConnell proudly and completely eschews bipartisanship in the appointment of Justices. As a result, if one party controls the presidency and the Senate, they can, and do, appoint Justices on the basis of party loyalty rather than more traditional qualifications. The predictable result is that Trump over time will be more and more right: hackery is now one of the predominant requirements for appointment, other great disadvantage of the rule of law.
40
The author in the parenthetical statement of his last paragraph is suggesting that unless Congress takes its rightful constitutional place, the outcome is likely to be, in the author’s opinion, a military coup. I think we are not there yet, not because it is unthinkable, but because Trump hasn’t the wits to organize one. But someone like Pence might.
18
@philip silverman . I share your fear regarding a coup, but even if 45 or 45 jr attempted to put one together, I have a serious doubt that the armed forces would go along, though they might be politically sympathetic. If things came to that, the rest of the country would go its own direction, (more accurately, in 320 million directions), and the military would have no authority or power save that that a rifle granted them. And they are not the exclusive owners of rifles.
5
A military coup is unrealistic. The military is far from politically monolithic (I served 30 years, been there done that, have the gedunk.) More importantly people are not attracted to the military by personality cults. Rather they are motivated (after desire to serve) by economic reasons. The better the economy the harder it is to recruit. The President (as CINC) is not a cult figure, he's just the current guy in the chair. I can't remember how many times I heard "this too shall pass after the next election." Half the active military (the National Guard) is controlled by the Governors - the Founders built it that way to prevent a Federal military coup. Execution power (as distinct from administrative control) is distributed among the CINCs of the "unified and specified commands." There is no overarching general staff. Not going to happen.
6
@philip silverman The military take an oath to defend and protect the Constitution. The only way a coup could occur in that context would be if a president attempted to subvert the Constitution. That being the case a coup is highly unlikely whilst Trump is in power, but if a radical Leftist succeeds him all bets are off!
How did we get here? The shift of balance of power happened with J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928) which authorized the administrative state. Congress ceded massive legislative power to the Executive. Congress also vastly expanded the size and scope of the Federal government by creating an administrative agency (e.g.HHS, Education, HUD, EEO) for every real or perceived problem. This dramatic increase in Executive power has/had only one semi-effective counterbalance - SCOTUS. Changing Presidents or SCOTUS Justices will not fix the underlying structural problem of removing legislative power from the Executive. Returning it to Congress requires reversing Hampton.
3
Sailboat Captain, it's refreshing to read a comment from an informed and thinking conservative. My thinking on the issue differs from yours which makes reading your opinion especially useful.
We have a system of checks and balance and it is common for the courts to act as a check on the legislative and executive branches.
The other branches need to check the courts with keeping them within their constitutional limits. An example is the court blocking the pulling of Jim Acosta's pass. The complaint argued 2nd amendment and Fifth Amendment due process violation. The text of the First Amendment only limits the legislative branches making of laws, "Congress shall make no law ...", including areas like freedom of the press and speech, Pulling the press pass was not about a law made by congress. The Fifth Amendment's due process class reads "nor be deprived of life, liberty, or property, without due process of law;" and arguably he was deprived of none of the above.
There are two ways to modify the constitution, and neither of them involve the courts. The first line of The Constitution after the preamble deprives the courts of any legislative power as follows: "All legislative Powers herein granted shall be vested in a Congress of the United States,". Similarly the court is not given executive power "The executive Power shall be vested in a President of the United States of America."
The Courts below SCOTUS are optional and entirely at the descretion of congress: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Congress should limit them!
Mr. Douthat writes that "to anyone who lived through the Merrick Garland and Brett Kavanaugh nominations, the idea that this norm would be resilient...".
Why stop there? Mr. Douthat should mention also the Merrick Garland nomination, which was treated with far more norm-violation than either of the two he mentions.
13
@Dan Styer Uummm...he did mention the Merrick Garland nominaton...in the quote you began with.
@Dan Styer Confused? He did.
Citizens United was a bad decision, not because it was political--that is, motivated by partisan concerns--but because it was simple-minded when not just wrong, like most of what passes these days as "conservative" thinking. I doubt very much that Justice Roberts is consciously partisan; he decides as he believes is right and is unconscious of the tendentious and blinkered character of his analysis.
15
@eisweino
I disagree about Roberts, and most Americans are blithely unaware that Citizens United was actually TWO separate decisions.
The first concerned an anti-Hillary Clinton mockumentary that a majority found to be protected speech. However, in announcing that decision, Chief Justice Roberts engaged in a behavior that appears to be close to unprecedented. He solicited a whole new case out of whole cloth, completely apart from the certiorari process that became what we identify as Citizens United, equating money with speech and overturning the bipartisan McCain-Feingold Campaign Finance Law.
In fact, in soliciting the case, Roberts called into question whether he committed perjury during his confirmation hearings with his claim of a philosophy of “judicial modesty,” comparing himself to “an umpire calling balls and strikes.” Nothing could be more immodest than creating a case on his own in order to use it as a pretext to overturn legislation with which he disagreed. Calling balls and strikes? Roberts’ behavior appeared to call a baseball game to his chosen conclusion and at the end of it, to have solicited a game of polo to determine the fate of a bipartisan piece of legislation.
12
@eisweino
He may be coming to that realization. We can only hope.
I agree with Mr Douthat that a 2 emperor solution is at best a short term remedy for a sick democracy. However, the real problem is not that our Chief Justices either have or wish to wear an imperial crown. the problem isn't even Senator Schumer, with his frequently poor choice of words and targets.
We have a President who simply cannot accept any disagreement with his views of the moment, and who is studiously unaware of the concept of separation of powers.
Our emperor problem is the current President - - period.
57
Yes, we have judges who make decisions based on ideology. Including Supreme Court justices.
No, it's not supposed to be that way. Judges are supposed to rule based on the law, or in the case of the Supreme Court, the Constitution, not personal bias. Douthat seems to studiously avoid that point in his article.
That's what's Roberts was saying, and it's significant because he was pushing back against a member of his own faction. If he were defending conservative judge against liberal criticism, his statement could have been taken as partisan rhetoric. In defending a judge against charges of liberal bias, he was undeniably sincere.
That's heartening, because Schumer's concerns about Roberts' bias have a legitimate basis. Douthat seems willfully blind in that he can't see that Schumer was saying "I think you've been biased in the past, but it's good to hear that you genuinely believe judges should be impartial." "Should" and "are" being different words.
The assumption that Roberts and Schumer are making is that Trump's position is not merely that judges are often biased despite the ideal of impartiality. They assume that Trump claimed judges rule purely based on bias, and the law is irrelevant.
This is understandable because Trump has treated the Justice Department as if it were his personal army, rather than a law enforcement agency. Republicans are not to be prosecuted, and his political enemies should be, according to Trump's public statements.
30
"Read these sentences over a few times, and relish their internal contradictions. John Roberts is to be commended for standing up for an “independent judiciary,” Schumer suggests, so long as he is attacking President Trump. But when he is issuing rulings with which Schumer disagrees, he is a 'partisan' and 'highly political' and a 'Republican.'”
I fail to see how the two are contradictory or inconsistent and also fail to see how Mr. Douthout cannot discern the difference.
22
Law, with accompanying courts, predate the United States, complete with angst as individuals of opposing political, and ideological positions, suffered decisions and outcomes.
What exactly is the option? Authoritarianism, which is what Trump would have?
I think not.
I suggest to you, Ross, that you get out "A Man for All Seasons," a work entirely concerned with deliberating this issue: Henry VIII v More. In the central scene Robert Bolt illustrates the matter in an argument between Sir Thomas More and his son-in-law, William Roper.
Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
Do I dislike Justice Roberts court's decisions? Yes, just as others in my nation dislike decisions made by courts I favor, central to them the matter of a woman's right to choose in Roe v Wade.
But the law is all we have. This system has worked for better and worse since established and Trump, and you, need to keep your hands off it.
42
@John F McBride The Inquisition was thrown out of England because its proceedings were contrary to English law. But Thomas More decided he could operate his own Inquisition. His support of the papavy's supremacy was hardly the defense of law that it is made out to be. The pope had granted a divorce to the French king and would have done the same for the English king except that the powerful and nearby (to Rome) Holy Roman Emperor was the uncle of Queen Katherine and threatened the pope with invasion if the pope granted King Henry a divorce. The legal system of England was able to advance quite well without the burden of papal supremacy. Queen Mary Tudor, and the restoration of papal supremacy, was a huge step backwards. More might have been pleased with Mary Tudor but that would only show his political rather than legal bias.During the reign of Elizabeth I the pope's declaration that Ebglish Cathilics had the right and the duty to rebel against her government hardly showed respect for law over politics.
2
@John F McBride
Yes - and thank you for a most interesting post!
But it seems now, that our most Enduring problem is the manner in which those SCOTUS seats are filled - the norm-destroying GOP/MitchMcConnell refusal to acknowledge Obama's highly qualified, widely respected nominee, Merrick Garland.
That was an act of constitutional sabotage, an act of partisan political war. And I say that that act must be countered somehow, someway - as soon as it is politically possible - to answer fire. That singular act cannot go unanswered. We have to undo that damage and right that wrong - or this country is in worse trouble than we might otherwise already suppose.
5
Interesting that Ross, like many who are wrong and on the right, criticizes the Warren Court for being "liberal"
(rather than what it was: a Court led by a Republican appointee who was following the Constitution)
and then, after the right wing mounted a decades-long concerted effort to politicize the Court,
(even going so far as to deny a centrist judge--Garland-- so much as a hearing, and appointing a lifelong strongly partisan and political Republican, Kavanaugh, who rose not through the judiciary but by being a political operative in his place)
practices what aboutism when liberals call this out.
51
Poster @Mark Andrew is spot on ! "Since 1978, and adjusted for inflation, American workers have seen an 11.2 percent increase in compensation. During that same period, CEO's have seen a 937 percent increase in earnings".
Ross, can you imagine what Christ would think about that ?
Today and for the last 15-20 years everything in America politics is tainted by the immense influence of money in politics brought to us by a select minority that hold most of the wealth in the country, that are far removed from the reality of everyday people and that have really radical agendas to promote and see deployed. The cost -of course- has been to the original intent of the Constitution ( as described in the preamble, to promote the general welfare of THE people ). The republicans are complicit in seeing to it that their rich benefactors ( donors and top 10%) are rewarded with tax cuts and other giveaways all at the expense of the general welfare of the people. Insuring that Americans have safe and modern infrastructure, healthcare, equal & appropriately funded educational opportunities - supports the general welfare. These things cost money typically payed for via tax revenue.
The days of when the rich contributed their fair share are long gone and with that , so goes the nation's equilibrium & collective moral center.
38
@KeepCalm CarryOn Dragging God or Christ into politics introduces an absolutist norm favoring one or another interpretation of God and Christ. My opinion on all this is that God is another word for "me." Same for Christ.So what? My opinion is just that, an opinion like any other contradictory opinion about God or Christ. the absolutism of religion, and of divinities of any kind, are best kept out of political debate. It was deliberate that the Constitution nowhere mentions God when every other government claimed that its legitimacy derived from God. The Constitution clearly put God aside and declared that the government it was instituting derived its legitimacy from "the people." Let's keep it that way.
2
@John Mack
agree with you in spades. The Christ comment was to give Ross a poke. I'm just not sure how Ross and any other 'wear it on their sleeve' follower of Christ can find anything good to say about the latest incarnation of the Republican Machine & recent Republican/Trump policies without feeling conflicted 24/7.
1
The Supreme Court is more politicized than ever before. Some pundit, more than a century ago, said the Supreme Court follows the election returns. And that's true. The Executive and the Judiciary now have more power than the Congress. But that is a contingent fact, not a necessary truth. That is why the recent election was the most important election since 1860. The Democratic Congress can now diminish the power of the Executive, if not the Judiciary. That will have to wait until the election of 2020.
12
I've said before, and will say again, that POTUS defines life as 'winning.' And 'winning' means others must 'lose.' The others are literally anyone(s) who defy his random will. In the context of governance the only way he can "win" is to defeat democracy itself. That is his end goal, and I suspect highly consciously so. Whether we reach this final showdown during his tenure is yet to be determined. He will not relent unless he is voted from office, is removed, or dies.
This, in an of itself, is an abdication of his oath to protect the Constitution. If the GOP had any guts they would be ready to impeach him yesterday.
90
Until the Constitution is amended to do away with the grotesque and anachronistic electoral system that ensures a minority presidency, ours is a futile exercise. PERIOD.
1
@Rob - Agreed except as regards the GOP having the guts to impeach. I don't believe it's a matter of guts. They won't impeach him because they're with him all the way. They're getting exactly what they want and have doggedly pursued for over 40 yrs., from trump - absolute power and they think permanent rule. If trump, and by extension the GOP is not derailed in the next few months, they might have succeeded.
2
Mr. Douthat misses one critical factor.
"Come a crisis, one (probably the one that commands the military and law enforcement) must be master"
- come a crisis, *the military may assert itself independently of both the President and the Court*.
The military is already the only institution that commands the respect of most Americans. It is also the most functional appendage of American democracy.
What if the military decides that both the White House and Supreme Court are ineffective in combating - let's say - climate change? Or domestic unrest?
10
@KS Well put; indeed, the accelerating pressures of climate change and the entrenched and powerful resistance to essential change by the fossil fuels interests, will test our fragile democracy to the core. We are approaching a civil war like moment.
5
@KS
"The military is already the only institution that commands the respect of most Americans."
After 27 years i Iraq and 17 in Afghanistan, I'm not so sure any more.
" It is also the most functional appendage of American democracy."
Not we we spend as much on it as then next 8 nations combined and get far less from it than they do.
When people watch a nomination process like Kavanaugh's, that from the start was a political setup, this in itself delegitimizes the courts. How is it credible the Justice Kennedy chose to retire, that his son has a close relationship to Trump, and that the president is under investigation for colluding with a hostile foreign government to win his election, yet he chooses to retire and allow Trump to pick his successor? How is it credible that the nomination process was so radically split in support between Democrats and Republicans if we are to believe that nominees are chosen for their judicial wisdom, beyond politics? This Congress and this president have already made clear the fact that the Supreme Court justice they have chosen is a political hack. Roberts is speaking out too late (Kavanaugh's behavior at his nomination discredited any pretence of judicial non partisanship). Roberts' should have spoken out then. Add to this the fact that Roberts' (with Kennedy) own decisions on Citizens United have no logical or reasonable basis, making his assertion of judicial wisdom and non partisanship impossible to swallow. Trump, Kavanaugh and the Republicans have already destroyed the court's credibility, which I think is exactly what they wanted.
157
@David Jacobson
How does anyone consider the Supreme Court to have any legitimacy whatsoever since the installation of Neil Gorsuch?
9
@David Jacobson
To my mind this obvious and shameless lie in Kavanaugh's acceptance speech: “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” should have been more than enough to disqualify him from a seat on the SCOTUS. How on earth can it be acceptable for a Supreme Court Justice to publicly lie so brazenly?
10
A highly sophisticated form of whataboutism. Nothing more. What about Chuck Schumer? Douthat fails to realize Roberts isn't speaking to Trump even when his comments are directed towards the President. Roberts is speaking to the judiciary. They have a role and responsibility to the United States which supersedes Trump and certainly transcends his twitter rants. Schumer is even more irrelevant to the conversation. He is the minority Senate leader and not an especially talented one at that. Dragging Schumer into the mix is not only whataboutism but false equivalence as well.
37
Alito thinks of himself as a political partisan. I don't remember his exact quote but it was something to the effect with a Conservative court he wouldn't have to bother to do the work he needed to do when there were only eight judges and they needed to work out some compromise decision. Now it could be he is just lazy and not the total narrow minded stone- hearted ideologically frozen hack I think he is. No need really to give him an out. He is defiantly proud to be who he is. And those other three each in their own way are pretty scary and socially cruel. I think it is interesting that even though Roberts is so narrow in his grasp of social forces and rightfully can be called a right wing judge, the very fact that he balks against that description might actually mean his sense of himself might not be entirely false.
13
There is only one Emperor in our nation now. And it is Trump. His power will not be shared by the Supreme Court.
What about Justice Roberts' rebuke, you say? Here is what it really is -- a fig leaf, and that is all. So when five members of this Court continue to toady to every whim of Trump's (as they did in the Muslim travel ban case), Roberts may point to his statements to show that he believes in an "independent judiciary."
This Court will shield Trump from subpoena, whether it be from Mr. Mueller's investigation, or Congress. They will strike down every effort of the House to properly investigate Trump, as beyond the House's "authority", all the while enabling our first fascist "leader". They will rubber stamp every action Trump takes with an interpretation of executive powers so "expansive" that the Grand Canyon would fit well inside it.
Remember, it was the Roberts court that dismantled the Voting Rights act a few short years ago, and we've seen the outcome. The notion that this Supreme Court, with Roberts, Alito, Thomas, Gorsuch and Kavanaugh, will vote against any action Trump takes is ridiculous.
Actions still speak louder than words. Watch this Court's rulings -- not the feel good remarks of a judge who could not see voter disenfranchisement right in front of his face.
44
@DB Cooper
Don't forget Citizens United. The most destructive decision this country will live to regret.
4
There is only one Emperor in our nation now. And it is Trump. His power will not be shared by the Supreme Court.
What about Justice Roberts' rebuke, you say? Here is what it really is -- a fig leaf, and that is all. So when five members of this Court continue to toady to every whim of Trump's (as they did in the Muslim travel ban case), Roberts may point to his statements to show that he believes in an "independent judiciary."
This Court will shield Trump from subpoena, whether it be from Mr. Mueller's investigation, or Congress. They will strike down every effort of the House to properly investigate Trump, as beyond the House's "authority", all the while enabling our first fascist "leader". They will rubber stamp every action Trump takes with an interpretation of executive powers so "expansive" that the Grand Canyon would fit well inside it.
Remember, it was the Roberts court that dismantled the Voting Rights act a few short years ago, and we've seen the outcome. The notion that this Supreme Court, with Roberts, Alito, Thomas, Gorsuch and Kavanaugh, will vote against any action Trump takes is ridiculous.
Actions still speak louder than words. Watch this Court's rulings -- not the feel good remarks of a judge who could not see voter disenfranchisement right in front of his face.
6
Having a mentally ill person as president doesn't account for ALL of the bizarre,"imperial" behavior -- but I think it helps. Don't you?
Underneath everything the president's mental state is the elephant in the room. Ignoring this fact or denying it and instead focusing on congress and courts and assertiveness strategies is akin to rearranging the deck chairs on the Titanic. We are in 25th amendment territory, like it or not.
39
The Supreme Court is, and often has been as sorry a joke as any of the other branches of government. It has often shown the same partisan tendencies as any other. It also is harder to correct over the short term, and has a nomination/confirmation system that is far too easy to game.
Trump is right. He understands that the reason why Gorsuch is on the Bench and not Garland, is not out of a non-partisan system, but one in which always has been.
Trump is wrong, that we should consider this aspect of the system as something great. We should be horrified.
We should not be letting partisan justices define the length of their term, either death or term limits- no resigning with timing. Further, although their decisions decide one case, Congress should be more willing to rewrite laws and if necessary move to amend the constitution in pursuit of Justice over the poor decisions of what is often five people with an ideological bone to grind. (Republican more often because they are in the majority, but the Democrats would be the same if the majority were theirs.) They all think that their ideologies are right, and that their decisions follow from law, delusion that is human, not partisan.
Justices are flawed people. Not living saints. The courts are a human institution, not a sacred one.
The past has shown us this. If Justice Roberts wants priesthood, the court is not it. If President Trump wants a partisan rubber stamp, that is often what American justice has been but shouldn't
3
One cannot perform useful analysis of Trump's destructiveness to the institutions that support our democracy using one or two horrendous tweets at a time.
These attacks come on almost a daily basis and are aimed with equal malice to our election process, our FBI and CIA, our scientists, our news organizations, and so on.
It almost seems that there is a method to Trump's madness- that he and Putin are on the same playbook to turn Americans against their own institutions in order to create anarchy or at least badly weaken us.
But that is obviously a crazy conspiracy. What could Putin possibly have on Trump to pressure him into this kind of behavior?
18
Mr. Douthat. You call out Senator Schumer for his statement's alleged 'internal contradictions' when in fact there are no such contradictions.
CJ Roberts is a Republican partisan. Of that, there is no doubt.
However the ideal that Roberts espoused, that judges should rule solely on the facts and the law is an admirable one and a (quasi) fiction that we must indulge.
For Schumer to applaud Roberts' assertion while identifying that Roberts himself is sometimes sideways to his own ideal is hardly a contradiction. Nor is it anywhere near the 'same thing' as Trump's latest effluvium.
There is a few light-years of space between what Schumer said and what Trump coughed up.
The legitimacy of our law rests upon following the process. That is why what the Republicans did in subverting the process in order to steal a Supreme Court seat will never be forgotten. And your column today is just a sophist's ruse to draw an equivalence between a Senator's nuanced approval and a President's braying.
27
@Lkf: I agree with you, and I would add that there is a contradiction, but it's within Robert's thinking, not Schumer's. Roberts is indeed mostly a partisan (although, it must be admitted, he saved Obamacare, to the outrage of many of his fellow conservatives) but he sometimes rises above partisanship for a time, as with Obamacare above and his rejoinder to Trump.
2
Apparently Douthat’s blind Republican partisanship has damaged his mental processes, or is it just his typical right-wing partisan dishonesty? Those of us still able to think logically, and capable of engaging with truth, see precisely zero internal contradiction in Schumer both praising Chief Justice Roberts for breaking with his party in standing up to Trump in calling for a politically independent judiciary and calling him to task when he fails to be independent by ruling in favor of partisan Republican goals without respect for the Constitution. Out here in the real world, that is consistent. If only the self-professed christian Douthat cared about honesty and decency, but it seems those values aren’t taught in his church or party.
18
@Renee Margolin,
There is no reason to believe that Mr. Douthat is not honest or decent. He may appear to be stone deaf on occasion and mulish, but means well.
Earlier, I mentioned to my sibling that his contribution to The Egyptian Book of The Dead had been cited to David Brooks, causing his hearing-aid to snap into action in a state of disbelief. I hastened to correct and redirect this to Mr. Douthat, where my heathen of a brother, a most religious man, who does not believe in God, look pacified.
2
@Renee Margolin. Does anyone really think Citizens United was a healthy decision for our democratic system? I’m certain there are Republicans and Democrats alike who enjoy the benefits of pay to play politics, but no one with half a brain could believe Citizens United is anything but a growing cancer.
I really admire people when they try to stand up for impartial principles regarding government. I haven't seen much of that lately.
Even when one of our leaders stands up for the constitution it doesn't seem valid any more. Our world has outgrown our constitution.
Overall the thing I admire is quality character and an adherence to good governance.
I don't think that Roberts, McConnell or Trump stand for that. I think Schumer tries, but he's failing along with the Republic, and he failed miserably with the financial bailout.
I'll restate what I've said from the beginning: the financial bailout spelled the end of the Republic. I sided with more Republicans than Democrats of this. It prolonged an anguished period of somewhat ambivalent decline of the moral union that once existed.
Hey, they knew it when they wrote the constitution. This is no surprise. A good assumption for anyone trying to form government should be that is it is always temporary and always needs to be changed if circumstances change.
We became too reliant on finance and money. We failed to realize that old lessons of finance, if applied, could bring down the union. But such is so. It looks to me like it's going to end -- and I suppose this is a lesson to economists: less than 300 people are unlikely to have the ultimate truths we need. You're arrogant! If economists believed we could control this...
At least we tried. What comes next? This country is soon to end, but what next?
4
I'm not certain that Trump vs. Roberts has brought us any closer to a failed republic, nor has an ultra-partisan Congress. These problems are not new; we've been at this over 200 years.
What will bring about the failure of the Republic is the continuing attack on the Federal government's role in providing for some amount of common good in society. Republicans in Congress, and their presidents, and now their Supreme Court, are digging away at the foundations of civil society when they try to kill the Affordable Care Act, threaten Social Security, Medicare, and Medicaid in the name of fiscal responsibility (fixing the irresponsibility they themselves caused), gut the EPA, ignore climate change, and so on.
Don't dismiss this as a "liberal rant." It's to point out the undoing of nearly a century of progress towards a more livable society and habitable planet. Non-partisan surveys reveal that most Americans are concerned about the loss of these things. But the few hundred Republicans in positions of natural power do not.
37
Pres Trump is correct that Judges have some political bias but the point is the Federal Judiciary as a whole renders apolitical decisions and attacking a particular court, judge or decision is injurious to the important balance of power between the branches of Government
9
you can parse and interpret meaning as you will, but I am indeed thankful that Roberts saw fit to take this incredibly unusual response from a Supreme Court Justice.
Indeed, an independent judiciary, contrary to uneducated CIC, is imperative.
That there are "conservative" and "liberal" justices is a given, and frankly, kind of helpful. What is neither helpful nor fair is to have a court so tilted to one side or the other.
I applaud Justice Robert's for sending a loud and clear message to tone-deaf CIC: we are not "your" judges. (just as the AG is not his personal lawyer!)
19
@c
Ah, but they are his judges. How can anyone doubt that reality after the spectacle of the Kavanaugh confirmation hearings? Can anyone arguing a Democratic-leaning issue, such as voter suppression, gerrymandering, minority rights, or women’s issues, expect a fair hearing before this court? And after authoring Citizens United, how can anyone take the good Justice Roberts’ protestatios seriously that the judiciary is apolitical? The only piece missing is for Justice Roberts, or Kavanaugh, to name a few, to decide that the right to give unlimited dark money to political candidates supersedes my right as a voter to know who bought and paid for my elected representative. (This idea has already been floated by such right-wing political partisans as Senator Mitch McConnell. What a coincidence). Then the final piece will be in place - one dollar, one vote. A million dollars, a million votes. The elites win, all the rest of us lose.
6
The radical right, not following norms, and proclaiming the press is an enemy of the people, the 2 decades of Republicans DRAGGING THEIR FEET of pricing presidential nominees for Federal judgeships, a few months ago declaring a recess to Dems, stating that if they just let the next few through, they can go listen to their constituents, then the next Monday saying:'Dems not here, lets appoint anyway. This is so one sided, and D0uthat, a paid hack for the right, glosses over what he actually knows. The right is the hue transgressor, the left has some anectdotal issues. Garner not being appointed was really degrading the integrity of the office.
4
There seems to be a pattern emerging in the work of certain op ed writers. Mr Douthat is one. Now he has pivoted from general agreement (or surrender) with regard to this president’s inability to measure up to even the worst of his predecessors to explaining to us the proper way to interpret his vile words.
Trump has demonstrated no self control, no leadership skills and no sense of responsibility in the job he was given. There is no reason to expect he will be any different by the end of his tenure and it is a waste of time to parse everything he says ad nauseum.
I look forward to January, when the House becomes the body that can provide a check on his excesses.
23
The criticism is that Schumer only likes court rulings which hold the president to constitutional standards?
Is the presumption that he should equally like court rulings which do not?
To be unconstrained by laws and norms has been the president's ambition and career. His fellow Republicans have joined him, for just one instance, look at the disgrace of our elections.
Today he threatened to bypass the courts, when it comes to admitting sanctuary seekers at the border. If needed he'll close the border, he said. How many international agreements would that break, or offend?
A new level of lawlessness, every day, new level of violations.
Any chance that he's staging a fight to overpower the courts in anticipation of the day he is called upon to account for himself?
With this president there is no issue where his personal self interest and personal fortune is not in the forefront.
One purpose of the courts is meant to cut that short.
16
@Eric Exactly . Schumer ‘s job does not require impartiality. In fact it requires the opposite.
1
“Read these sentences over a few times and relish their internal contradictions.” I did, but I didn’t. Douthat”s “contradictions” are my “qualifications.” Schumer is grateful that Roberts rejected Trump’s tweet on the judiciary. Period. Furthermore, Schumer states he disagrees with a few named Roberts’ “decisions,” which he describes as partisan and political. He finds these decisions, not Roberts per se, as flawed by inherent bias.
Douthat occasionally gets into these “angels dancing on the head of a pin” distinctions that elude many of the rest of us. Oh, and it’s difficult as well to envision an emasculated US Congress wringing its hands in the wings. If we’re drawing comparisons with the Roman Senate, it's clear that Consul McConnell had, and continues to have, much to do with creating our current situation.
14
@Lee E. "Distinctions that elude many of the rest of us"? It's clear as the words on the page that Schumer is contradictory in congratulating Roberts' "impartiality" while taking issue with his "partisan" decisions.
Please don't inflate your obtuse opinions beyond the personal.
Lee E.
I'm not sure what your getting at regarding an "emasculated US Congress."
Is this your term for the new female-heavy Democratic-majority House of Representatives?
Or are you being more general and using a word that, for its etymology alone, needs to be avoided when dealing with a group composed of men and women?
1
Well said Mr. Douthat. Like all master propagandists, Donald Trump mixes the occasional truth in his cyclone of lies. Anyone still pretending the Supreme Court is non-partisan is probably also looking for Santa Claus and his reindeer to show up in late December. All we can hope for now is a Supreme Court less partisan. If Mr. Trump has his way, Supreme Court Justices will become employees at the beck and command of America's oligarchs in much the same way as so many members of congress have become. That's just another reason removal of Mr. Trump and his toadies from positions of influence can't happen fast enough.
7
@Eric Caine. I believe conservative or liberal leaning justices and thier decisions are much more often the product of legal reasoning colored by personal history, education, and life experience than political partisanship. Judges do not personally benefit from their decisions one way or another, nor do they better their prospects after leaving office, their appointment is for life. They have no reason to care a whit about what Trumps says or thinks of them. Let’s not confuse partisanship with authentic disagreement on issues before the court which rarely have a single “right” answer. We have conservative white men, a conservative black man, liberal women, women of color all sitting in judgement- diversity at work. I’d give this court the benefit of the doubt.
2
@Brian Cornelius Mr. Cornelius, I admire your optimism, but why the preference of Mr. Trump for Mr. Kavenaugh. No reason to care? What about social status? Approval of friends and the like-minded? What about the history of grooming people for such status and approval? They may not care what Trump thinks, but they care about their conservative or liberal circles of friends and family. Kavenaugh and company have a history of political judgments. Some of those judgments appeal to liberals, some to conservatives.
3
So, Douthat, is a more assertive Congress just an easy way for you to get out of this dilemma? As a Christian, a liberal of a sort, and a social democrat, I wonder about a return to civic responsibility and engagement as a better solution to our current problems. I'd trust that over more power for Mitch McConnell. What do you think?
8
If we ever reach the day when the American military must choose between the law (the judiciary) and a dictator (a rogue president), then our democracy will surely be dead -- shades of every unstable government subject to military coup.
Trump's lawlessness already forces the military leadership to choose between the law and illegal orders, e.g., firing on civilians throwing rocks. Gratefully, the American military culture and officer corps respect the law and the boundaries of civilian control. Their commitment may be the only thing that really stands between us and a tin-pot dictatoriship.
24
Decisions of the Court have always reflected the political philosophy of the Justices. When their decisions align with our ideology, they are being impartial and balanced. When they don’t, the Justices are activist partisans who override the will of the people. The Court has been political since its inception, albeit weakly so until Marbury. With that decision, the Court firmly, although circumspectly, became a political creature, target, and prize. President Trump’s attacks have simply pulled back the curtain.
I agree that Congress has abdicated; however, we don’t have two emperors. We have two Proconsuls. The remaining battle between the two will be won by the side with power, a lesson from history clearly and repeatedly demonstrated since Caesar crossed the Tiber.
1
@Billfer
Well, let’s not dwell on your errors in Roman history (Caesar crossing the Rubicon, not the Tiber; in this setting, two consuls, not proconsuls). But your US history is defective as well.
Until quite recently there were relatively few Supreme Court decisions people felt strongly about or thought “political”. This may have been in part because of the phenomenon that sometimes judges associated with one political philosophy would, after being appointed, occasionally or even often vote the other way. What is new today is the consideration when choosing a candidate that philosophical reliability trumps all other considerations.
2
@Observer Excellent point,but many Americans in the past did think certain Supreme Court rulings were outrageous. Much of the North felt that way about the Dred Scott decision. And much of the nation felt that way (about the decision overthrowing the separate but equal rule.
1
@Observer
“Until quite recently there were relatively few Supreme Court decisions people felt strongly about or thought ‘political.’”
Dred Scott
Plessy v. Ferguson
Korematsu
2
"Save for the pious tone there is little practical difference between this intervention and Trump’s rants about “Obama judges.”....One of the problems we have is there seems to be a consistent need on the right to equate the language and behavior of Republicans and Democrats.....No matter what Trump says or does, it is sort of ok because the Democrats would do the same thing if they had a chance. No. What Trump says and does is not ok. And no, no matter how you twist and turn there is nothing remotely approaching an equivalency between the vulgar bigoted behavior of Trump and what is espoused on the other side of the aisle. Time for Douthat and the Republican pundits to admit the truth. Trump and the Republicans who support him are just plain ugly.
101
@W.A. Spitzer
I heartily agree. I am so glad you point this out. I wish the mainstream media would wake up and say the same.
21
An ideal Supreme Court that guards the Constitution and the Rights of Citizen and Man is an apolitical Council of Sages.
When has the US had such a court? As long as the judges are appointed by the elected politicians, in the modern decades by the leftist radical Democrats alternating with the conservative Republicans, there is no hope of judicial light on the horizon.
2
We haven't had a non-partisan Supreme Court since George W. Bush was appointed in 2001. Furthermore, judges are human beings and have their biases just like the rest of us. Trump is doing what he does best when he goes off on a rant: getting someone, Roberts in this case, to take the bait and pay attention and respond. If Roberts is smart he'll follow things up by proving to Trump that his position as president doesn't excuse him from being subject to the full force of the law. I'm sure that Trump or his newest sycophant, Whitaker, will provide a wonderful opportunity for Roberts and the Supreme Court. The real question is whether or not they will hold this GOP fool accountable for his trespasses.
39
The flaw in Mr. Douthat piece is that the President claiming that the judiciary is critically tainted by political leanings is different from the same claim being made by pundits and various political actors that are, by default, partisan. The President's words are supposed to carry a different weight and, indeed, in this case, they are not simply a statement of the obvious fact that various judges are appointed by politicians. Rather, all this weight is applied to delegitimize a judiciary that is inconveniencing more and more the administration and the President himself.
24
The functional correction required is a presidency supported by reason and tradition. The Enlightenment and form. Trump is without reason and tradition is beyond his understanding or interest. We must remove his negative bias from our dialogue and news.
17
They'll break the courts, you know. Not conservatives - liberals. Right now the conservative obsession with the judiciary is pointed towards stacking the courts, from the Supreme Court on down. That strategy assumes the courts will stay respected and powerful for the next several decades.
That's not something liberals can really counter just by stacking the courts more themselves, and it's not something they can tolerate or ignore. So... they'll have to break it. And conservatives have left no real reason to keep it functional. Like Ross himself pointed out, we have and have had an ideological, partisan court, and the courts have a unique weakness among democratic institutions.
1
@Roarke: interesting thought, that it will be the liberals that will want to break the court because they feel that it has been stacked against them.
The corollary is that Conservatives should slap down Trump whenever he fights with the judiciary. If you want to protect the current situation as much as possible, you should make sure that all the norms stay in place. It is possible that Trump’s and McConnell’s legacy will be that in their eagerness to make their mark, they broke the restraints that then resulted in a bigger swing in the opposite direction.
5
@Roarke
It's also not exactly something the liberals have the ability to do, now is it? As long as the Conservatives have the Senate, they have the Court. No?
6
@Andrew
Andrew,
I think you're trying to teach three-cushion billiards to people who can't even play catch.
You don't support norms in order that B shall persuade C to do D. If a norm is worthwhile you support it now for its worth.
As an immigrant, I have always found the U.S judicial nomination as wishful optimism. How can partisan political appointees-- and that's exactly what Federal judges are-- be ever be perceived to be impartial? This system violates the maxim that justice must be seen to be done.
Perhaps there should be a system of career justices chosen by an apolitical board composed of senior justices and afterwards appointment to various courts will be based on seniority with a strict term limit/ retirement age from the service.
7
In theory, the existence of laws and the appointment of people dedicated to them should provide a basis for relatively non-partisan influence. At the very least it is a “differently partisan” influence, as we see in the way that judgments do not always go the way that politically partisan assessments would indicate. Imperfect, but a lot better than nothing.
I think we can all agree that the Supreme Court has a deep bench.
We learned the value of a deep bench during the 2016 Republican primaries. What a useful, consequential, and educational experience that was.
4
Well, I don't usually agree with Douthat, but must say that what is said here makes sense. That said, I do think that many judges do make an effort to separate their decisions from their own partisan preferences. Still, as the country has divided more completely, there has been a tendency to appoint individuals to the bench who are much more clearly partisan in their thinking, i.e., more openly ideological in their pre-judgeship lives. With those appointments comes an expectation that they will, as judges or justices, give their 'side' that for which they were appointed, e.g., overturn Roe v. Wade.
Certainly it is hard for many (if not most) citizens to see the bench as anything other than an extension of one side or the other. The country desperately needs Congress to find its backbone and start functioning again. Checks & balances needs all 3 branches of government.
21
This really is the Rashomon problem with law; that reality is often open to interpretation, and that there can be several conflicting truths. The one you choose identifies certain fundamental truths about you as much as it attempts to find the closest approximation to objective reality. I suppose the only real answer to this is to include certain discrete points where randomness is triggered. That is, when there are two or more equally possible interpretations, let there be a lottery system between them, and then continue with the subsequent reasoning.
There is a way for the Congress, even just the House, to restore the constitutional equilibrium. It controls the appropriation process. And it all it would take to put a brake on Caligula would be for the House to put the following clause in every appropriations bill it sends to the Senate and then the White House: "No funds appropriated under this law or any prior appropriations law shall be used to pay the salary or expenses of any person appointed to fill any vacancy now existing or to become existing in the future, unless a supplemental appropriation approves such specific expenditure for the particular person to be appointed to fill such vacancy."
If we are willing to accept a government shutdown from time to time that will work just fine. And it will go a long way to establishing the House, known as the "people's branch of government," as the first among equals … like the British House of Commons.
8
The content of this opinion is full of interesting thought. However, push that aside for a moment what do we have?
We have an amoral man as the leader of America that, prior to Trump, was considered the leader of the free world.
Today the remainder of the world is scrambling and recognizing we have lost our compass, cannot be relied on nor trusted.
Trump will not complete his four year term, but world leadership will have changed forever.
41
Supreme Court justices are human beings with human flaws. The flaws can and often do include political and philosophical biases. But even flawed courts and judges do not rise to the danger of a Trump presidency.
History shows the Supreme Court mistakes and abuses are corrected over time. How will a tyrant's flaws and abuses be remedied?
Pointing out that the president or dictator has control of military forces and enforcement of laws only underscores the threat Trump represents. Meanwhile a Republican controlled Senate (and until January, House of Representatives) has not only abdicated its authority but has abandoned its loyalty to the Constitution and our Republic.
No Supreme Court can damage America as grievously as Trump who has already undermined the people's faith in our institutions, and trust in our elections and democracy.
Even a partisan Republican Supreme Court has to recognize the danger of Trump and his Republican congressional curs to the survival of our Republic.
46
Ross should re-read the Constitution because the Trump vs Roberts tussle is a great example of how our system of checks and balances is supposed to work. America is not an absolute monarchy. Chief Justice Roberts and President Trump are not emperors. Ross Douthat's use of words like abdication, imperialism and emperor defeats the purpose of how our system is supposed to function.
20
@sharon5101: It's of far greater importance that the President acquaint himself with the Constitution than that Ross Douthat do so. Trump hasn't demonstrated the capacity to read anything that contains more than 140 characters and he seems to believe that the role of the chief executive exceeds that of the Congress and the Supreme Court combined. If someone doesn't disabuse him of that line of thinking this country will go straight down the toilet (and I'd say much the same thing even if I agreed with the majority of his policy positions).
20
@sharon5101
I believe the key words in your statement are "supposed to". Because from what I'm seeing our supposed system isn't functioning.
5
There are no "Obama" judges, at least if you examine the votes to confirm to the Supreme Court--all are above the traditional 60 threshold. It's the Republicans' Supreme Court justices who are the beneficiaries of partisan political extremism with Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas--the most extreme conservatives on the court--all receiving less than 60 votes. We need to put an end to the "nuclear option" invoked for lower court judges by Harry Reid to overcome the scorched-earth obstructionism of Mitch McConnell and then when he became Senate Majority Leader's McConnell's abrogation of his oath of office even to provide "advice and consent" on Obama nominee Merrick Garland and then invoking the nuclear option for now Associate Justices Gorsuch and Kavanaugh by 54 and 50 votes, respectively. We desperately need non-partisan, non-ideological judges and the best way to do that is to return to the 60, if not a super majority 67, votes to confirm all judges without the use of the filibuster. For Donald Trump who has benefited the most from this blatant corruption of the judicial nomination process to complain is, as is so much about him, the height of hypocrisy. Congress needs to end the toxic legacy of Newt Gingrich and Mitch McConnell and return to civility and compromise in order to restore the balance essential for a tripartite sharing of Constitutional power to succeed.
223
@Paul Wortman
I am glad that you mentioned Harry Reid's decision to change the rules. I thought it was a terrible mistake when he did it, it was obvious to me at the time that if the Republicans were ever in charge they would do what McConnell did, make the "Nuclear Option" the rule for all judicial appointments.
I will never forgive him for this.
7
@Old Mountain Man If Harry Reid had left that Senate rule untouched while Democrats held the majority in that body, Mitch McConnell would have changed it anyway as soon as the Republicans regained the Senate majority. At least, Democrats were able to accomplish some things while they held the Senate.
9
@Old Mountain Man O come on, McConnell would have gotten rid of the "Nuclear Option" whether Ried changed the rules for lower judge appointments or not. Just look at how McConnell handled the Garland appointment. Nothing was going to stop McConnell and I suspect he knows much more about why and how Trump won. McConnell has gotten millions of dollars of Russian money for his campaign. IMO Reid did good to get those judicial appointments McConnell was holding up.
12
We do not have one emperor, let alone two, in this country. We do unfortunately, as a result of a decades long campaign by people with more money than sense, have individuals in positions of power in this democracy who feel deeply justified in gaming our democratic system for their own ends, which are all about getting more money by any means necessary, and justifying their own world view by discounting and demeaning those who are different, inconvenient or challenging. We can tell that the old man with 150 little dogs in his house has a problem. We get confused about the old man with 150 million or 15 billion dollars. We tend to see power, not hoarding, not mental illness there. We have given control of our country to men who have no self control, men with no insight, in the case of Trump, and apparently no conscience, in the case of Roberts. The democratic experiment is collapsing before our eyes.
36
@Meredith Russell Agree with the mental illness metaphor, but it is not an illness of Democracy, it is one of Capitalism. If the workplace were run as a democracy, we wouldn't have this:
According to a report from the Economic Policy Institute, the average CEO pay is 271 times the nearly $58,000 annual average pay of the typical American worker. ($15,718,000).
Although the 271:1 ratio is high, it's still not as high as in previous years. In 2015, CEOs made 286 times the salary of a typical worker and 299 times more in 2014. Compare that to 1978, when CEO earnings were roughly 30 times the typical worker's salary.
Since 1978, and adjusted for inflation, American workers have seen an 11.2 percent increase in compensation. During that same period, CEO's have seen a 937 percent increase in earnings. That salary growth is even 70 percent faster than the rise in the stock market, according to the Economic Policy Institute.
It would seem, once you have started banking that kind of money, your interests would be focused on how to keep it, and having money makes you instant friends, especially in Congress, who are in a position to make laws that make holding on to your wealth easier. Since Morality is not written into these laws or Capitalism in general, we do have clueless millionaires comforted that their wealth is somehow trickling down while, I don't know, paying to burn down rainforests to plant palm oils palms to make their Biodiesel stock ticker move up a few points.
16
"But if Congress prefers abdication, a two-emperor system isn’t built to last. Come a crisis, one (probably the one that commands the military and law enforcement) must be master, the other must submit. That’s the important message of Trump v. Roberts. Let those with ears, hear."
A compliant and complicit Congress has allowed this President to disregard norms, precedents and laws at will.
Despite a Roberts rebuke, SCOTUS is heavily weighted with republican judges, one of whom stated a president can not be prosecuted while in office. The Senate remains in republican control.
Come a crisis? The crisis is on its way. It begins with Democrats taking over the House, investigations, the issuing of subpoenas, the outcome of Mueller's investigation, etc.
This president doesn't consider himself above the law - he thinks he is the law.
What's going to happen when he refuses to submit as Douthat puts it? We're about to find out.
74
Going by Mr. Douthat’s column and some of the readers’ comments, there seems to be a “criticism” conflation of specific Supreme Court rulings and the Supreme Court Chief Justices under whose jurisdiction these occurred. And, as Mr. Douthat points out such criticism relating to “dual imperialism” has been a bipartisan ritual since the birth of the republic.
Nonetheless, it’s important to note that President Obama was critical of the 2010 Supreme Court “Citizens United” decision, not of Chief Justice Roberts, who joined the majority 5-4 ruling in that case. Also, Democratic presidential candidate, Al Gore, graciously conceded to George W. Bush in 2000 after the Supreme Court ruled 5-4 in “Bush v. Gore” handing the presidency to Bush. Mr. Gore famously said that while he disagreed with the decision, he accepted the Supreme Court’s verdict and never chastised Chief Justice Rehnquist, who had led that ruling.
However, President Trump has made his criticism of the judiciary personal by referring to “Obama judges,” as if these judges are incapable of “doing their level best to do equal right to those appearing before them” as Chief Justice Roberts so rightly pointed out. That is the main difference between former presidents, who criticized specific Supreme Court decisions, and President Trump, who constantly insinuates bias (through his accusatory tweets) in judges who rule against him.
366
@Jack Nargundkar: Well said, Jack. We all know that a judge's opinion my reflect, to some extent, his or her personal or ideological beliefs. The law is rarely "black or white". As you point out, our political leaders have mostly been gracious when they are on the losing side of a court's decision. Trump is not gracious. He impugns the integrity of judges, entire courts like the Ninth Circuit, and always claims bias as he plays the victim card. Not only does he man lack class and decorum, his words do severe damage to the citizens perception of an independent judiciary. A judge can still be independent while having a point of view. They aren't often idiots.
10
@Jack Nargundkar Jack, Trump attacks judges and courts because he assumes every judge is like Trump - craven, conniving, bigoted, corrupt. Trump’s attacks are projections of his own flaws and failings. He is incapable of understanding that many people hold themselves to higher standards. Trump isn’t even aware that higher standards, like the rule of law, exist.
23
@Jack Nargundkar
I'm not sure Al Gore did the United States any good at all by not contesting that Supreme Court decision. In fact, I'd say if there ever was a time for the Court and its decisions to be challenged that was it. We have all suffered from his choice not to do so.
4
Thank you President Trump, for calling a spade a spade. The truth is most Judges hew the party line. The truth is that the Judiciary has become the third chamber of the Congress, unelected and fixtures for life, their worldview shaped by their 40s, giving the same opinion over and over well into their 80s. The Democrats are as complicit in this state of affairs as the Republicans by reducing the confirmation process to a few party line criterion. The first step to the cure is to acknowledge that a problem exists.
3
Ross Douhat got it right. As he wrote "if Congress prefers abdication" the President and the Supreme Court not only will take the place but they will also compete for the spot number ONE. Now if you observe the politics in Washington, Congress does not act, the President issues executive ordres and the Supreme Court legislates from the bench. The question is, whom will run the show? Presidents or the Chief Justices.
4
@Wilbray Thiffault
Let us hope that Pelosi becomes Majority Leader and does what is needed: leads. She has it in her. She is a strong leader, effective leader. The problem is that she is likely to be hampered by her counterpart in the Senate, Mr. Milquestoast Schumer. If ever there were a man not up to the task, it is he. That leaves Nancy having to stick a broom up his spine every time something difficult comes along, and with McConnell's evil designs on power and Trump's reckless hold on it, that time is daily.
6
Of course the court is political, which isn't wrong per se because court appointees are supposed to be a result of a representative government.
But when the court's make-up is fundamentally distorted by wholly undemocratic forces, such as Jeb's voter 1999 Florida voter file purge, widespread 2000 minority voter suppression and 2000 Supreme Court vote rigging that produced justices John Roberts and Justice Samuel Alito, followed by the Senate's 2016 suspension of the Constitution for Barack Obama and Merrick Garland, followed by the dubious voter-suppression fueled 2016 appointment of massive popular vote loser Donald Trump and his appointment of two Federalist Society sycophants...then we no longer have anything approaching representative government...we have a well-oiled Randian-Reverse-Robin-Hood hijacking supported by its rabid right-wing propaganda-industrial-complex that creates enough cultured stupidity to make a despicable, trash-talking con artist, tax dodger, and scofflaw wind up as America's great Mad Hatter Ruler.
If America was even remotely democratic, the Republican Party would have been reduced to minority status 20 years ago and the Supreme Court would have only one Republican.
But Republicans and their judicial puppets never could stand democracy, preferring a dictatorship of the 0.1% and their duped masses.
Let all Republicans now enjoy the Frankenstein Trump they created in their authoritarian laboratory of deceit, destruction and sociopathic greed.
961
@Socrates : is 100% correct : the SC has been partisan for a long time. after all, that's precisely why we've been witgnessing those bitter " conformation hearings". those hearings were never ab out the skills, experience of the candidate but rather, and quite openly, about their political leanings and how they'll rule on certain, key issues.
having watched the kavanaghu hearings we know how he's going to rule on those key issues : as a rabid conservative.
a very similar argument could be made about a justice such as Ruth Ginsberg. so its ALL POLITICAL. admit it already.
32
@Socrates
Let's not forget for one single moment that the Supreme Court is stacked with right wing ideologues because the so called "Green Party" (a tool of Republican operatives who fund them) decided to confuse a certain percentage of gullible voters in 2000 and 2016.
Do NOT make excuses for these folks. They are nihilist. And they are Donald Trump's enablers no less so than Paul Ryan or Lindsey Graham.
They are just MUCH less honest about it.
138
@amir burstein - Ruth Bader Ginsberg was confirmed by a vote of 96-3 … not a vote just on party lines.
But now I cannot imagine any Democrat voting for any Republican nominee, or the opposite.
102
It's disingenuous of Ross Douthat to equate the Garland and Kavanaugh nominations as evidence of partisanship in the judiciary. Based on his judicial record, Garland was a true centrist, and wouldn't have been a predictable progressive vote on the Supreme Court. Before his nomination was torpedoed by Mitch McConnell, there were concerns among liberals as to how Garland would vote on a host of hot-button issues including abortion, gay rights and the death penalty.
There were no such questions about how Brett Kavanaugh would/will vote on these and other contentious issues. Another difference? Kavanaugh had the opportunity to address the Senate Judiciary Committee's concerns (and his testimony only served to reinforce Democratic concerns that he'll be a Trump justice). Merrick Garland never had the chance to demonstrate whether or not he'd be an Obama justice or his own man.
151
That “judges’ legitimacy transcends the partisan origins of their appointments” is a fiction, which no one who has been paying attention believes. The SCOTUS has become the most influential, partisan institution in Washington, as Mitch McConnell will gleefully remind you. The entire point of the Federalist Society has been to put conservative Republican judges on the high courts, and they have succeeded beyond their wildest dreams. Republicans and the Federalist Society just got together to celebrate their partisan victories in the SCOTUS, with 4 of their team’s SCOTUS judges in attendance. Cigars and high fives were abundant, but impartiality was nowhere to be seen. John Roberts scolded Trump for speaking out loud the reality that the Supreme Court majority is wholly beholden to the GOP that had installed them. Such things are supposed to be whispered, not bleated. For once, Trump let the truth slip out...
15
"John Roberts is to be commended for standing up for an “independent judiciary,” Schumer suggests, so long as he is attacking President Trump."
But there was no attack on Trump, who was the antagonist here! Trump attacked the integrity of a court, diminishing them as a tool of President Obama, and added very hostile flourishes, too, about ultimately beating a ruling. Roberts stood up for the impartiality of judicial associates, which is far different from an attack.
In an ideal world, the response of a Supreme Court Justice nominated by a Democratic president would have carried the same weight as Roberts'. But in this environment, it took a conservative-leaning judge, put forth by a Republican president, to credibly stand up to Trump's diatribe.
46
No more 'lifetime' appointments.
Maybe 10 years, maybe 12? Something to bridge a couple of administrations, which may also be party shifts every 4 or 8 years.
But if they're not there for life, maybe the battles wouldn't be as ghastly.
Or amoral.
Or partisan.
60
@jazz one
Or detrimental to democracy.
What you suggest is long overdue. My vote would be for 18 years maximum for the court — and all members of Congress, too. Include a restriction barring former members from joining any lobbying group for 6 years after leaving office.
17
@jazz one Sadly, I believe they would be as ghastly, as amoral and as partisan, and what's worse, more often.
I don't know what the answer is, but I think those suggesting that a 60-vote majority might induce presidents to nominate those who are more centrist to ensure the appointment could be on the right track.
Or, just get rid of Mitch McConnell for starters.
14
@Hope Madison
Hi, Hope,
It's not like I 'know' the answer, for sure.
Just tossing out one idea.
And I like yours, and others, about getting back to the 60-vote rule ... that would do a lot to 'right the ship.
And yes, amen, on Mitch Mc. Not holding my breath tho, they all hang on forever ....
2
correction
One cannot perform useful analysis of Trump's destructiveness to the institutions that support our democracy using one or two horrendous tweets at a time.
These attacks come on almost a daily basis and are aimed with equal malice to our election process, our FBI and CIA, our scientists, our news organizations, and so on.
It almost seems that there is a method to Trump's madness- that he and Putin are on the same playbook to turn Americans against their own institutions in order to create anarchy or at least badly weaken us.
But that is obviously a crazy conspiracy theory. What could Putin possibly have on Trump to pressure him into this kind of behavior?
33
The question, Mr. Douthat, is which branch of Congress? There may be some help on the way in January with the new House, controlled by Democrats. The Senate, meanwhile, will always defer to the executive as long as the president is a Republican and as long as the G.O.P. wields the majority in the upper chamber.
We have a weak president and a weak Supreme Court, both governed by ideologies that are as far removed from democracy as they can be. Chief Justice John Roberts knew what he was doing when he voted for, yes, Citizens United, Shelby and McCutcheon. All three eroded the power of one person, one ballot in favor of "corporations"--plural, deliberately shadowy and ill-defined.
"Come a crisis, one (probably the one that commands the military and law enforcement) must be master, the other must submit." Given a Republican-dominated Senate, which one would be the master? Given that the executive would direct and control "law enforcement" to the various states (read: the Southern ones), why should (or would) a rebellious South accede to any federal decree? Even if Donald Trump were the president or (God forbid!) Michael Pence? We would hear the screams of "states' rights." The military would be a different matter but only if the soldiers were deployed overseas.
We're out of balance, Mr. Douthat, as you write, but it's the Republicans who wish and want that imbalance because if they control the presidency and the judiciary, they control the nation.
Mitch McConnell is waiting.
33
John Roberts was right that an independent judiciary is something for which we should all be grateful. But the question is, for how much longer can we count on one?
15
I see nothing in the Consitution of the United States that renders the judiciary exempt from criticism for their performance. Indeed the left was extremely vocal when the Citizens United decision was returned and vocal in a way that was as divisive as it could be.
Critics of Trump should also remember that the Ninth Circuit Court of Appeals if the most overturned circuit court in the nation, a condition that suggests that the Ninth Circuit Court is out-of-step with our jurisprudence and our constitution.
Yes, Roberts is right. The federal judiciary is a hard-working bunch who go to work to support or governance, not destroy it. But when you have a court that consistently and repeatedly gets it wrong, being silent is to be accepting of judicial challenges to the very judicial system that the judges are supposed to be fostering.
But Roberts is wrong not to insist that the Ninth Circuit do a better job...
And Trump is right to call the Ninth and Chief Justice Roberts to account for the dysfunction that seems to have infected one of the more important courts in our land.
1
@The Owl
Civilization is frail indeed. That does not make courts that consider people's humanity and stand up for victims wrong. It shows they care.
Anybody trying to maintain a habitable planet and enforce fairness and justice in the face of absolutism is doing the hard work of resisting the tide of hatred and victim blaming.
Perhaps you are somebody who doesn't want to share, as you claw your way to blind wealth. Otherwise, you might look at history, and see how hard-won justice serves humanity. The 40 hour week? Unions. Child labor laws? Drinkable non-toxic water? A hospitable earth to share? The latter, by the way, is real. No amount of "fake news" is going to stop one flood or hurricane, or keep South Florida from drowning. Legislating against reality and humanity is wrong.
By the way, if you call yourself Christian, I recommend the Gospels. Jesus would be in Gitmo or some such if the party of blame and hatred got in the way. Quite biblical, our situation!
Trump the cowardly bully doesn't care about us. He'd just as soon his opponents were jailed, tortured, and murdered. The silence of others is welcome to those who wish only to impose their will on the rest of us.
182
@The Owl
Perhaps you never notice it, back there in old New England, but the Ninth Circuit also just happens to get appeals on more of the most difficult and thorny issues occurring at the Federal level. In legal circles it is considered one of the more important circuits to follow for precedents. More complex issues always stand a greater chance of being overturned than simpler ones.
24
@The Owl: Wrong on the facts: the 9th is far from the most overturned, the 6th and 11th are far ahead of it. The 9th is the largest, having 12000 case filed in 2014-15, nearly 4000 more than the 5th, the next largest. But, I guess if Hannity says it, and Trump repeats it, you take it as gospel. If anything, the 9th is the very pulse of our jurisprudence and constitution.
19
You'd rather have our wannabe godkingemperor continue on his way to Hitlerizing the US? Jail his enemies without consequences? Blaming victims has consequences.
I can't get away from the way Ross Douthat chose to be more catholic than this Pope in siding with the decidedly unchristian efforts of our party of greed, as it cheats its way while enforcing minority rule (stolen elections have consequences indeed; Florida is in real trouble). Circuses of resentment and not one grain of humanity, honesty, or acknowledging that we have real problems to solve.
Roberts doesn't aim to be a king, and he's practiced admirable restraint. But that does not excuse his putting money over people and power over all.
Rolling back the 20th century will not end well.
The earth itself, which doesn't obey orders from Trump, has much more to tell us. Try the front page for consequences.
If Roberts shows some respect for truth, that is not a failing. Somebody needs to bridle our cringeworthy cowardly bully in chief.
By the way, about Florida: consider the Proud Boys. You think white nationalism is a "both sides" problem?
https://thesternfacts.com/miami-gop-chairman-just-caught-leading-proud-boys-in-attack-on-democratic-campaign-office-319216540f79
https://www.theguardian.com/world/2018/nov/19/proud-boys-fbi-classification-extremist-group-white-nationalism-report
65
When Obama said there was "no red America, no blue America, just America", he wasn't denying partisanship, he was saying that what happens to one American happens to us all. That is what John Roberts was getting at. The law is interpreted by judges who are supposed to reflect their understanding of the statutes. Not their appointees understanding, but theirs. It what drove people crazy about all the swing voters on the court. Regardless, at a certain point, the options have been exhaustedand we all have to live with the consequences of the "settled" law (ie. Bush v. Gore). Trump wasn't arguing the legitimacy of the law in question, he was denying the legitimacy of the judge, as he denied the legitimacy of the black president who appointed the judge. It was a good point to make by Justice Roberts and a timely one, because it assures those of us who have lost all representation in our Legislative Branch, due to cowardice and our Executive Branch, due to insanity. I would hope that judges take into consideration their own experiences when coming to decisions about the law, and now that Trump has chosen to delegitimize the Judicial Branch, I hope they take that experience into consideration.
99
Presidents are not ideal Chief Executives, nor are Congresses ideal national legislatures, nor are Supreme Courts justices impartial authorities on Constitutional laws. Our government was designed to account for imperfect people in positions of the most important offices.
But make no mistake, emphasizing individual deviations of actual behavior from ideal behavior has been used throughout human history to convince people to abandon agreed social conduct and social values to manipulate people to act in ways advantageous to the people pointing them out.
Roberts is a conservative and his decisions will be influenced accordingly, but that does not mean that he does not respect government by law not strong leaders.
Trump wants the government to do as he wants regardless of the law because he won the election. He lives the, “elections have consequences”, idea. The “elections have consequences” idea defines democracy to be inherently illiberal, government unconstrained by law over popular will or clever corruption of elected officials. It expresses a king of the mountain attitude towards elections that gives winners authority that is unlimited.
The two could not be more opposed in what they see government and courts to be. Trump is an authoritarian who is constantly trying to have the final say in whatever he has interests and he considers limits upon his acts as President to be wrong and evidence of governmental dysfunction. Roberts wants an independent judiciary.
56
@Casual Observer great comment ... one of the better ones I’ve ever read
2
Well, that certainly cheered me up!
Seriously, Mr. Douthat makes some serious and important points. We really need to listen, though I feel quite powerless over the situation. As I've said a few times over the last two years, I'm glad (and fortunate) that I have far more years behind me than in front of me.
16
Perhaps you missed Chief Justice Roberts intention of challenging Trump, Mr. Douthat. What the Chief Justice was trying to get across is that while Judges and Justices are nominated by a particular President, that if they are then appointed by the Senate, then that Judge or Justice will rule as he or she sees fit within the interpretation of law without thought to who appointed them. It is naive however, to think that Judges and Justices can totally separate their ethical beliefs when considering an interpretation of law. The Supreme Court has done a decent job of doing so, although I certainly have not agreed with all the Justices' decisions.
Trump I might add, becomes irate at the thought that our government has separation of powers, and that each branch is equally powerful. He cannot accept that fact. Let's hope the military does not get involved to maintain the separation of those powers.
53
@Diana
The judges and justices are hampered in their ability to grow out of the political forces that brought about their rise to seats on the courts by their relationships with the Republican donor class who pays them to speak at conferences they organize.
No judge or justice should ever accept payment for public speaking, even in a private venue. It creates not only the appearance of corruption; it creates actual corruption. Thomas and the late Scalia come to mind. No doubt, Alito and Gorsuch are already following in their footsteps with Kavanaugh finishing his beer and racing to join them.
24
We’re passing through a brief transitional period between a contentious but sane democracy and a psychotic personality cult that was empowered by millions of resentful underachievers. There are certain to be dust-ups and conflicts as they systematically destroy health care, rob the poor to pay the rich and replace intellect and prudence with crotch-groping narcissistic insanity. Give it time.
Normally, an out-of-control president with massive personality disorders and a fifth-grade intellect would never have been elected, but here we are. It’s ironic, but the people who put him into office are the very ones that liberal policies often protect. This explains why the 20th century generally saw women, gays, people of color, immigrants and working people getting increased rights.
So I’m not a fan of conservative Supreme Court justices, especially when the aggrieved president recently jammed two conservatives into the gears just to slow down the wheels of liberal progress. But anyone who keeps the president at bay gets a pass in my book.
This explains why Chuck Schumer expressed relief when a foe on the Supreme Court sought to restrain the megalomaniacal impulses of an imperial president.
But is this really a two-emperor scenario? We’ve had imperial presidents before, some who have channeled Caesar and others who have emulated Nero. Now we’ve got a budding Caligula in the Oval Office, whose horse would clearly do a better job. We're talking one emperor at best.
701
@gemli There is a chance--slim, I admit, but a chance--that the Republic may yet be saved.
I think that John Roberts--however much I may disagree on fairly important matters--is a good and honest man, who cares about the welfare of the country. In a crunch (think "Mueller"), I dare hope that Mr. Roberts will be on the side of the angels.
Desperate as the times are, I'm glad that Roberts is where he is.
51
@gemli I have often wondered why I bother reading Ross Douthat's columns at all. Now I know. It is to read cogent, pointed rebuttals such as yours.
84
Bravo
24
Senate Republicans have made the craven calculation that, as long as they can infuse the judiciary with right-wing ideologues and pass massive tax cuts for the wealthy, they will allow president Trump to debase the Constitution and demean America before the rest of the planet.
The Democratic House triumph in the 2018 mid-terms was a crucial push-back. I anxiously await the results of Robert Mueller's investigation and the revelation of the reality show president's tax returns. The reckoning is in motion. That is why, to any rational observer, Trump is in melt-down mode. May sanity ultimately prevail.
396
@Alan R Brock
The Dems are leaderless and have no message. They have had no backbone nor direction since LBJ.
3
@Alan R Brock
Its accurate that what republicans exist for is the next time they get a chance to rifle the national treasury for their supply sider constituency. Any and everything else is just waiting. Notice the pattern?
21
Ross, need I point out that the "liberal" Warren Court was led by a Republican, nominated by Eisenhower?
When judges make decisions based on actual human experience, in an attempt to do actual justice, instead of merely toeing an ideological line and allowing racists and reactionaries to continue denying the larger spiritual implications of the American Revolution, that does not make them or a court "liberal".
The fact is that Chief Justice Roberts has a choice ahead of him. Were he to rubber stamp the whims of a deeply unpopular conservative President, or a heavily gerrymandered legislative branch that now electorally represents an ever-shrinking minority of the American people, he will be putting the credibility of the Supreme Court at stake - and inviting a future successful attempt to modify the composition of that Court.
Were he to, on the other hand, attempt to be an actual umpire, seeking do justice instead of the bidding of this shrinking electoral minority, that would also not make him a liberal - but merely a realist and patriot who understand the perils that this Court and country now faces, at least partially because of previous interventions by the Rehnquist and Roberts Court.
I hereby invite Chief Justice Roberts to become the new Earl Warren.
566
You make a presumption, Mr. Carnicelli, that your views are the correct ones under the law.
I would suggest that you are not the sage that you hold yourself out to be, and I am grateful that there is a trained judiciary looking at the legal questions that arise.
Remember, sir, that the Supreme Court, and all of the lower courts, too, can only go beyond the disputes that are brought with great difficulty and highly questionable legal sleight-of-hand. To do so would be beyond their authority under our system of Common Law and our Constitution, putting them in a position of creating law as a "super-legislator".
I am sure, sir, that once that door is opened and becomes acceptable practice by our judiciary, you will not be pleased with the consequences.
6
Ross's writing usually displays an inspiring mastery of the essay language, but he infuses it with a content weighted down so much by wanton blindness of what conservatism has actually wrought in our republic. One literary result of his incapability to own up to the truth of the matter, is that I often know the inelegant point of his argument far before I reach it. If I may, I feel This response to Ross should have been (could have been) Ross’s own argument if he would have taken more responsibility for his selective thinking. It taught me something important about our current politics I have read nowhere else.
27
@The Owl
The laws of the state of Georgia in 2018 allowed Brian Kemp to both be a candidate for Governor and to run the election for Governor, with no superior force to prevent him from manipulating the process in his favor - thus depriving the people of Georgia of a guarantee of a truly honest outcome.
Of course, had the Roberts' Supreme Court not invalidated parts of the Voting Rights Act in 2013, Kemp might not have been able to get away with this obvious attempt at voter suppression.
The reason that a Voting Rights Act was necessary in the first place was because the voters who constituted a majority in the Jim Crow South had no intention of ever being just to the African-American populations of their states.
Yes, the Jim Crow South represented the will of a racist, insular majority - elements of which continue to exist within the contemporary conservative base. But from as far back John Marshall's defense of Cherokee Indian property rights in "Worcester v. Georgia", Supreme Courts have attempted to intervene when a legislative majority is not up to upholding the letter and spirit of American democracy.
The periodic interventions of the Supreme Court in state decisions may offend you - but the best remedy for these impositions is surely for a majority to always seek to do right by all the citizens of a jurisdiction, and not just its racial or sectarian majority.
Or, in more colorful words, the Courts most often become involved when "We the People" stink.
148
The party in power gets the "one" president and his or her ideology, that's why we vote. We need to make sure voting is fair for all, end gerrymandering, and look into voter suppression/ voter fraud. As for the Supreme Court, I would change it to 50% liberal and the other 50% conservative , with the VP of the side in power making the tie breaking vote.
1
@Missy Oops. You'd give power to Pence. I don't think that's a good idea. Funerals for fetuses and jails for mothers and doctors. All power to the Kochtopus.
This court has done a great deal to make voting unfair.
Power to whites? https://thesternfacts.com/miami-gop-chairman-just-caught-leading-proud-boys-in-attack-on-democratic-campaign-office-319216540f79 - https://www.theguardian.com/world/2018/nov/19/proud-boys-fbi-classification-extremist-group-white-nationalism-report
Proud boys indeed. George and Mississippi are on board as well. Meanwhile, the planet is burning up.
Perhaps Roberts has caught a whiff of our planet's mortality and faces a reckoning.
20
@Susan Anderson Well in this case, yes Pence would be the deciding vote. That said, is this administration even legitimate? If Russia interfered and Trump was guilty, how could anything done or chosen (ie... Pence) by Trump be legitimate. I'm talking about legitimately chosen by the people administrations.
7
I read Roberts' statement to the AP, and Trump's tweets attacking Roberts, less as an illumination of current reality than a laying down of markers for the future. I do agree with Douthat that Congress has abdicated a good deal of their power, and that we may be headed for an executive-judicial showdown. But Roberts, I think, was trying to warn Trump that he and the federal courts are unwilling to ratify Trump's transparently juvenile disregard for any supervision whatsoever. While this iteration of the Supreme Court may be inclined to discard judicial modesty for the sake of promoting ground rules that favor GOP electoral domination, including voter ID requirements (de facto unconstitutional poll taxes, unless the state IDs are free, imo) fundraising, and gerrymandering--while Roberts will go along with all that, he will not submit to Trump's every whim or protect Trump from anti-corruption lawsuits. Roberts has a more challenging task than Trump, for he needs to persuade the public that the high court is legitimate. All Trump needs to do is sabotage public approval of the judiciary. Fortunately, Trump has already lost all credibility for a plurality if not outright majority of likely voters.
63
Has the Trump crossed John Roberts red line?
Infusing some starch in his spine,
Has the bile, at long last,
Echoed McCarthy’s past,
Will the Court to the Law now incline?
A horror is Trump at the helm
His witlessness does overwhelm
Will Roberts unchained
And functioning brained
Undo the lawless Trump realm?
86
I hope Roberts swings to the left if only to counterbalance the craziness of Trump.
3
@Larry Eisenberg
Bravo Larry!
3
@Larry Eisenberg
Ahh, if only...
4
"So there is time for an anti-imperial rebalancing, in which a more assertive Congress somehow brings us back into constitutional equilibrium.....
But if Congress prefers abdication, a two-emperor system isn’t built to last."
Ideally "anti-imperial rebalancing" starts on January 3, although I still believe the Senate ultimately holds more legislative power.
The question that's more logical, which Ross ignores, is how Congress will react if the Executive branch refuses to answer all those coming subpoenas.
What then? Will the Court step in to answer the inevitable lawsuits designed to force the president to adhere to the structure of the constitution?
And will the conservatives on the Court uphold our founding document, or will they side with their new Kavanaugh wing that says the chief executive should never be forced to do anything?
The problem with Trump vs Roberts is, constitution aside, so many of the norms and practices the president is shattering relied on a system of constitutional politesse, not law. In other words, such norms and rules aren't legislated so much as practiced in good faith.
When a president lacks good faith and has authoritarian (imperial?) instincts, and Congress does nothing, is it really up to the Supreme Court to set the matter straight?
There are no precedents for Trump, which is why he's so damned dangerous.
265
@ChristineMcM...Aside from your political shots at Trump and ignoring that the courts and the Chief Justice are not immune for criticism, I have to agree with your assessment.
Much of what happens in Washington, and in every political body down the law, is governed by politesse and habit rather than rules or by law.
But, when politesse and habit are the methods of doing business, the process is dependent not on "good faith" but the assumption that the other guy is going to have the same views of both the politesse and the habit.
Interestingly, it is argued, and convincingly so, that Trump was elected to shake up things in the federal government. And here he gets criticized for shaking up the very politesse and habit, and all of the flock of ducks are screaming that he is causing a constitutional crisis.
Sorry, Ms. McMorrow, Trump was elected to shake up the precedents. And like it or not, he is being successful at it.
5
@The Owl: You write, "Interestingly, it is argued, and convincingly so, that Trump was elected to shake up things in the federal government."
"Shaking things up" does not mean destroying them. I call this man a clear and present danger for this republic, because he is. Not only is he willfully ignorant of the constitution and its articles and bylaws, he abuses power, taking on than our system of checks and balances allows.
That he's "successful" speaks more to the fear he's instilled in the former Republican party who mutely watch why he says and does things that were the political tables turned, would have already caused the impeachment of a Democratic president.
From attacks on the free press, to misuse of the military as props for his fear-mongering on the border, to the recent news he asked (demanded) that McGahn investigate Hillary Clinton and James Comey as if we were a tin-pot dictatorship, the man is assaulting the tenets of our government.
This goes way beyond "shaking up the government,"--I know it and you know it. That you are so sanguine and approving of his behavior simply tells me you're fine with living under a dictatorship, as long as it's a "Republican" one (Trumpism has nothing to do with the former Republican party).
The whole reason Ross wrote what he wrote is because democracy, as set up in the constitution, isn't working. One entire branch is in hiding and the other two are duking it out.
237
@ChristineMcM
That's Trump's strategy; what are they going to do about it? If you're talking about McConnell and company nothing.
32
"But to anyone who lived through the Merrick Garland and Brett Kavanaugh nominations, the idea that this norm would be resilient absent Trump’s Twitter provocations seems laughable."
No. We need to rise a few more thousand feet.
We have elected judges. We have judges who are picked by a politician and then made to go through a kabuki play consisting of vetting, a hearing in which that judge is expected not to reveal positions they most likely have, and then the grand finale, in the form of a partisan vote.
We are the only nation whose judiciary is not a part of the civil service and it shows. Judges who run for office feel obligated, as do their prosecutor counterparts, to run on platforms that are supposedly apolitical, but are the farthest you can get from neutral in nature. As a result, we've had a prison-industrial complex that has trapped millions in the incarceration business.
What Trump did this week was pull a transparent veil. Of course our judiciary is political. It is thanks to Obama, Bush, and Clinton judges that the worst of Trump's excesses were stopped.
Will the next president and Congress, as it attempts to put our nation back together, take the bold step of making the radical changes we need in reforming justice? If they don't, justice will remain as political as Trump says and harsher and more corrupt than ever.
---
Things Trump Did While You Weren’t Looking' https://wp.me/p2KJ3H-2ZW
45
Of course the court has always been ideological, in the sense that we all have ideologies. But it was the GOP that first subjected nominees into what we used to call "litmus tests," choosing judges & justices for their expressed opinions on politically advantageous issues. And it was the GOP that turned ideology into partisanship, with cases like Bush v Gore. And yes, with the fiasco of Merrick Garland replaced by Gorsuch, the GOP has designated Democratic seats and Republican seats on the court.
44
@Martin...
Oh, come on, Martin. You're rewriting history.
I'll offer your three names where the Democrats subjected nominees to litmus tests...litmus tests of the most disgusting form...
Robert Bork, Clarence Thomas, Bret Kavanaugh.
Note that Justice Ginsberg, Breyer, Kagan, and Sotomayor were not excoriated by the Republicans on the Senate Judiciary Committee for their political views the way Bork, Thomas, and Kavanaugh were.
Get your head out of the sand, sir...it leaves a good portion of you exposed in not-so-favorable ways.
A weak piece upon which to parrot 'whatabout-ism' GOP'er talking points.
" If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy. " - David Frum, former Dubya speech-writer
" The state of our union is lawless. " - Eric Swalwell (D-Ca), Jan. 30 2018
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@R. Law
"The masses have occasionally revolted at being poorly governed. The rich object at being governed at all. "
That is a paraphrase, but the sentiment stands: the rich want no constraints on their behaviors, like Trump in that regard. We all suffer as a consequence. Congress has not had its powers curtailed by a strong executive; it has offered them up on a silver platter without even being asked.
The tumbrils should stop at the Senate first. They are the greatest traitors for they understand full well what they have done.
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@Nora m: Another maxim is "Those with the power make the laws". The Rich may object to being governed. But they've also figured out how to gain control of government. See EPA.
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@Nora, @Richard - Indeed; the question is why Douthat doesn't perceive GOP'ers should see their party expire, for sacrificing e-v-e-r-y-t-h-i-n-g for: judges. There are no principles, no treaties, no ethics, no Oaths which take precedence. GOP'ers have tolerated every conceivable Orange Jabberwockery - forever defining down the high office of POTUS - for their tilted Legacy Judiciary of lifetime appointees.
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