This seems encouraging. And it would be absolutely hilarious if Kavanaugh turns out to be much less conservative than he was made out to be - or maybe really was while he still had to please the right people to advance on the career ladder.
That would greatly benefit the country and make the right-wingers look silly - but also the leftists who tried to destroy Kavanaugh based on no evidence whatsoever.
And the totally unjust and crazy vilification on the right of Justice Roberts, just because he was only 99% conservative instead of the required 100%, could push him too to become less and less conservative over time. Justices are also people, and if his old friends and his 'movement' abandon him like this, his justified sense of victimization may well have psychological effects that will make right-wingers regret how they treated him.
29
@GS. I hope Kavanaugh surprises us but we had a real world recent decision in which he attempted to block a first trimester abortion for a 17 year old immigrant in detention who had already jumped through the proper Texas hoops, seeing an ultrasound and getting permission from a judge. By the time Kavanaugh was overruled by other judges, she had a much later abortion at 16 weeks. Those who support abortion rights had every reason to be concerned.
41
A 17 year old illegal alien to be exact. She had no business being here and should have been deported in the first place. We either have border security or we don’t
1
The author missed the obvious conclusion, viz., conservative judges interpret the law, while liberal judges reverse engineer their opinions based upon their political beliefs. That conservative judges disagree is a great thing. The law is complex and no one ought to predict how a justice will opine based upon the justice’s politics. I applaud the Chief Justice and Justice Kavanagh for their decision, thought I could not agree more with the blistering dissent filed by the greatest jurist on the Court (Thomas). The two ‘rouge’ conservatives voted their intellectual conclusion, and while I do not agree with the conclusion, that they respected the process and honored their oath gives me hope for the Court and its future.
5
Sadly, the court is nothing more than an elite group of partisan hacks from Harvard and Yale law schools, two hideously elitist institutions. There is simply no legitimacy to protect. It is much too late for that. John Marshall seemed to know that the moral high ground was the Court's real source of authority. In recent times, at least since Bush vs. Gore, the modern court glibly tossed that notion aside. They are simply irrelevant to most at this point. The Court probably shouldn't even exist except perhaps to decide interstate trade disputes. At least the Court won't be actively hurting most people if that is their sole function.
22
Like Hillary Clintons's emails the Planned parenthood charges have been investigated over and over and no illegal acts found. No false billing, no fetal parts sold, all actual abortions done with private donations, not tax money, 97% of the PP is for routine medical care not abortion. Yet this is the fund raisers and vote getter that repubs Love to hate. PP and nancy pelosi are sure fire Repub money raisers and they do not want to let this go. Thomas is an example why SC judges should have limited terms.
54
@RichardHead But Hillary did break the law and if she wasn't Hillary Clinton would have been prosecuted for foia violations and destroying government property when court ordered to preserve it. So she had it scrubbed off her server instead. I wonder why someone would delete emails they were already caught trying to hide?
@Justin H.
Wrong,
Hillary committed no crimes and she was investigatedfrom every angle for more than 30 years so if she had committed any crimes surely the Republics would have indicted her by now.
21
John Roberts is conservative from head to toe. His only saving grace is that he has the presence of a judicial mind to know that caving into the far right extremism of Thomas, Gorsuch and Alito could spell disaster on many fronts. The one I like even though it got bad press because of FDR's bungling is to have a modern version of the Judiciary Act of 1869. No Constitutional Amendment required. I would like it called "The In Your Face, Mitch, Judiciary Act of 2021" and it would either shrink the court down to 7 members (Goodbye Gorsuch and Kavanaugh) or increase it to say 10, 11 or 12 - and Clarence, that's all she wrote!
19
Linda, I have a suggestion. Thomas, Alito, Gorsuch, take their initials. Call them the TAG Team!
Ms. Greenhouse,
Thank you yet again for the lucidity and thought you bring to your writings. Would that you were to write weekly rather than fortnightly.
5
This is a case of Kavanaugh getting the yips and overcompensating.
Hopedully he gets over it soon and makes it worth the fight for people who stood by him during the madness.
Justice Thomas is a throw the baby out with the bathwater type of judge. He can decide an issue and win, so the fever temperature of the country right now be damned.
The other justices seemed to understand to let abortion alone right now, that it's not the time to further unsettle an already unsettled America with yet more acrimony and division this case would've created. Cooler heads - wisdom - prevailed.
Ah, then there's Clarence Thomas. He is fine with "deciding" another issue for us all, division and rancor created be damned. If the country implodes, well, at least abortion was circumscribed. A can't see the forest for the trees mentality. A radical partisan who never should have been put on the Court. Rest In Peace, GHW Bush, because we're not.
5
As always, an interesting article Linda Greenhouse. The current Supreme Court’s legitimacy sailed long ago on a Republican boat.
Roberts (“balls & strikes” liar); Gorsuch, sitting in a stolen seat, that any honorable man would have refused; Kavanaugh, a man who displayed for all to see by his behavior in the congressional hearing, his unfitness for a seat on the court.
Take your pick.
6
Despite having (alleged) control of all three branches of government, the Repubs have still managed to muck everything up.
Which turns out to be the best situation of all options available because they can't get a darned thing done.
This will not go unnoticed by centrists and nonpartisan voters in 2020.
The voters will clean house and the cycle will begin repeating itself with a great deal of things to undo and get back on the right course again.
As a country, we weathered Lenin, Stalin, Hitler, and Mao so we can assuredly recover from the brief lifespan of "Trumpism."
2
Linda, as I invariably find your articles insightful and cutting through the crap (can I say that?), this is no exception. Could it be that, on varying occasions, some of the partisan, right wing justices (again, can I say that?) show at least a vestigial backbone? Who knows. Time will tell.
3
Justice Clarence Thomas and his 2 associates are acting like children who did not get their way and ran to tell Mom about it. They are so concerned about their personal agendas that they care nothing about how other people view the issue. They are acting like shills of the Republican party. We need a constitutional amendment to do away with lifetime appointment to the court and submitting the justices to the electoral process. If they insist on acting like politicians they need to be treated like politicians.
3
I love it! Let Silent Clarence, or his other comrades, keep unjudiciously blasting away at his two, right wing colleagues. At the end of such an anger-fueled, divisive ideological process, with some hope a new Court alignment might emerge. A majority of six on the Supreme Court for societal progress and equal justice!
This is the best article of the year. The court system is meant to be our wise elders to help temper the impulses of the other branches. Instead, it has been more like lex Luther in sheepskin clothing. Ok, maybe an exaggeration but for someone such as myself, a moderate, it feels this way. Credibility could well be like the silent dam that bursts and causes troubling cracks in our democracy. Right and left seem to compete as to whose hair is on fire. Nothing steady, there. As much as I resent Roberts for so many reasons, brilliant article for clarity of his importance and a great example of why I like to read what is not about the next five minutes.
1
Chief Justice John Roberts may need a friend, and maybe Boof Kavanaugh will do for now. Fortunately for Bart, the judicial ethics panel couldn't proceed with a review of 17 complaints against him now that he is a seated justice.
But, just maybe, a House Judiciary Committee investigation with subpoena power may better illuminate his prior behavior than the sham Senate hearings and the intentionally weak FBI investigation.
Impeachment proceedings may still end up on the docket for Robert's drinking buddy.
3
Doesn't the fact that they are divided mean that they are at least a little more independent than their counterparts on the left? Although clearly there are two blocks, mostly in controversial cases, the left has been for a long time somewhat more lockstep than the right (you can read the stats going back decades). When there is a swing vote - O'Connor, Kennedy, Roberts, it normally comes from the right. You would think that this would be something appreciated, but, in real life, partisans on both sides do not want judges to be independent. They want them to vote the way that they like. And they judge everything else - fairness, public perception, constitutionality, etc., based on that.
It is kind of interesting how the seething over Kavanaugh has calmed down now that the left sees he is what Prof. Amar testified he was before it all blew up - the R judge the liberals should want on the Court. Is it strange how someone who was called "evil," a rapist and lacking judicial temperament is now just peachy after a couple of votes on the right side? No, b/c it was never really about him, but Trump, Garland and "lock her up."
1
When conservatives question the legitimacy of liberal judicial activism, they are attacked for undermining our nation's institutions. But when Ms. Greenhouse concern-trolls the Supreme Court's "short-term welfare and long-term legitimacy" she is just telling it like it is? We all need to admit, sooner rather than later, that the Legislature has abdicated lawmaking to the Judicial and the Executive, and we are all worse off for it.
Sadly, Greenhouse's byline is all it takes for me to predict an abortion apologies masquerading as legal commentary. Roe has poisoned our judiciary and it is poisoning the intellectual integrity of its ideological defenders.
Instead of uncritically repeating Planned Parenthood propaganda, I encourage everyone to actually watch the "dishonestly edited video" she references without attribution or the hint of a fact check. The Center for Medical Progress has hours of its uninterrupted, unedited footage on its website. You would think that journalists would be interested in facts, rather than pro-choice political soundbites (just google "heavily edited video" and "dishonestly edited video" to reveal the mantra designed to feed the credulous). Stay woke.
1
"fraudulently obtained and dishonestly edited video purporting to show that Planned Parenthood clinics sell body parts of aborted fetuses"
"Fraudulently obtained," means, 'undercover investigation' of the kind that is a permanent staple of journalism. "Dishonestly edited" means '60 Minutes,' style, but not, say, the 60 Minutes way of dealing with things like Dan Rather's fake news about George W. Bush's military record. And, of course, Planned Parenthood runs a business in selling body parts—the only discussion is how you evaluate the economics, but not the fact of the existence of the commerce.
1
Congress’s long-term legitimacy been receding in the rear-view mirror for some time now...
This simple – if a nation growing its private sector at:
> 6% or more: they’re going to emerge as a global leader, with attendant nay-saying and back-biting, as well as legitimate concern about what their growing influence will mean
> 4% or so: in a steady state – which can be good, bad, or in-between, depending on what that state is
> 2% or less: the knives will come out – both for other nations, and for their own internal factions
Why:
> Money folks going to skim 2% – at least – just look the hedgie’s simple formulaic fee
> At 4%, there’s a sustainable 50-50 split between the rich and the rest of us – though the socialists continually tear at that by trying to redistribute wealth between the upper-middle class, and the rest of the rest of us
> At 6%, there’s money and prosperity to invest beyond the nation’s border – whether to buy or build stuff in other countries
> At 2%, it’s re-arranging the deck-chairs, burning one every hour or so to stay warm
Everything else is side-show
Thomas wraps himself in a two-century old document (plus or minus some amendments), while May wraps herself in a two-year-old referendum...
While Xi looks more and more like Reagan with each passing day...
To get to keep running things is to need to keep providing things...
Paid-up things...
The rest is side-show...
Thank you for an illuminating article. I expect that Republican justices will continue to provide interesting subjects for contemplation.
1
John Roberts, and as I had feared, Brett Kavanaugh, vying for the Kennedy center of gravity, are putting Georgetown soirees before constitutional muster.
The court's "long-term legitimacy" derives from the court's fidelity to the Constitution, not from bathetic virtue signaling. The fundamental problem with Planned Parenthood is the fungibility of both money and fetal body parts.
The ACA as written was not constitutional—Congress can regulate commerce, but not compel it. Chief Justice Roberts made the law constitutional by rewriting it, making the mandate precisely what Obama was arguing, (if only from one side of his mouth), it wasn't—a tax.
Recall this gem from Obama's ACA architect, Jonathan Gruber: "This bill was written in a tortured way to make sure CBO did not score the mandate as taxes…call it the stupidity of the American voter or whatever."
Roberts' rationale for his activism—“It is not our job to protect the people from the consequences of their political choices.”
But it's also not the job of SCOTUS to rewrite laws.
The tax bill was a de facto invalidation/repeal. ACA survival requires healthy young people to buy it. They won't. Coverage of pre-existing conditions allows them to wait until they need it to buy it. The ACA cannot exist w/o the mandate's revenue stream.
Despite the ACA death spiral, the Left's Pavlovian drool continues: conditioned reflex, facile punditry & picaresque prose that practically writes itself.
"Obamacare is a crazy idea"—BClinton
2
Author can be credited for the success of the campaign where votes by SCOTUS that the left dos not approve of are not commented from legal schools of thought point of views but as a question of the courts very legitimacy. That is a win win forever. Roberts can be assured his funeral will be all praise McCain and Bush style. Well played.
1
I believe the Chief Justice has multiple reasons to steer the Court away from a string of 5-4 decisions on controversial issues with a partisan tinge to them. Clearly Trump has tarnished the image of the Judiciary. Recent Trump appointments viewed as rewards for political support. And, finally combating partisan warfare requires cooler heads and a tempered approach.
His will be recorded as the Robert's Court. He is well aware he may occasionally find himself on an island. Kavanaugh might benefit from viewing himself as he described, a fair impartial judge with no partisan agenda.
3
What concerns the liberals is the abortion debate. The states have been pretty successful in enacting stricter abortion laws in the last few years. The fate of roe v Wade concerns the progressives greatly and they are so afraid the decision made years ago may be overturned. It probably will not happen overnight but there is a good possibility that it could happen somewhere down the road.
The pro life groups have made quite an impact on influencing people that abortion is immoral. They have been able to change minds and the conservatives on the court agree. I think Justices Roberts and Kavanaugh would side with the other conservatives and make abortion less accessible. They see the taking of innocent lives as inhumane. This is good news for the lives in the womb.
2
Yet 79% of all Americans feel that abortion should be legal in some instances and 50% believe in all instances. How does this align with the statements you made? https://news.gallup.com/poll/1576/abortion.aspx
4
The U.S. would be much better off if the current head of the executive branch had even a fraction of the awareness of his predecessors as it appears Justice Roberts does.
Taney or Taft? Marshall or Meathead? Sorry about that, but he probably thinks about the future history of the Roberts court in something like those terms (of course, far more learned).
2
POLITICS HAS ALWAYS BEEN THE NAME OF THE GAME AT THE COURT.
It's just that a majority of Americans practice radical denial. But its more easily revealed than the belief in the fantasy that free- market capitalism, as its called, is a beacon of freedom and has not been turning Americans slowly into serfs
5
Good work. Now I understand that some of the most important votes on the Supreme Court are involving the cases that are not taken.
2
I've got news for you: Many of us think the SCOTUS already lost its legitimacy with the insistence by Trump that radical ideologues only (Read: Federalist Society picks) be appointed to the court. The Kavanaugh Confirmation Spectacle only adds to that feeling. And, the ruination of the confirmation process (two words: Merrick Garland) is the cherry on the top. Republicans have set this country back in so many ways, my head spins just trying to keep track. Their machinations with the make-up of the SCOTUS is only one of those ways.
15
Lots of negativity even though the court did exactly what liberals wanted. The court doesn’t even rule on the issues important to liberals, yet howling ensues. Sad!
4
Re: The court's long term legitimacy
... has been gone since the verb "to bork" entered the US
dictionaries.
Language reveals our deepest thoughts.
Bork transitive verb
\ˈbȯrk
\variants: or bork
Borked or borked; Borking or borking; Borks or borks
Definition of Bork
: to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification
Merriam Webster
2
@Upstate: Bork complied with Nixon’s order to fire Archibald Cox, the independent counsel in the Watergate case, after his two superiors in the DoJ refused to do so and resigned. ‘Nuff said. Democrats except for two, and six Republicans were absolutely right in voting against the appointment of Bork to the SC. The firing of Cox was later judged to be illegal obstruction of justice. And Bork still got his hearing and vote in the Senate, which was denied to Merrick Garland.
19
@Anna Well said Anna. Bork was a disgrace who should never have been nominated. I'm glad he was defeated, but then we got Thomas. Still not sure who is worse.
4
@Upstate
Miriam Webster should stick to its knitting as to what’s unfair or not. Bork was borked with his own writings. I’d define “to Bork” as to blast someone with his own petard.
5
Scalia and Thomas were very comfortable redefining the Supreme Court as a nakedly partisan institution. Scalia took his instructions from the RNC and only made the most half-hearted attempt to try to dress up his reasoning in constitutional law.
Scalia and Thomas relished awarding the presidency to George W. Bush; they loved green-lighting Voter ID and they loved writing Citizens United for the Koch Brothers so the Kochs could buy as many state legislatures, congressmen and senators as they desired.
But it's possible Roberts and Kavanaugh, while both conservatives, have more reverence for the history of the Supreme Court and more concern about the court's prestige.
If the court becomes nakedly partisan in its mission to help the GOP and Trump, the risk of severe, structural backlash becomes very real if Democrats ever get control of the other two branches of government.
The level of partisanship is vicious enough, and Democrats are frightened enough, that court-packing legislation becomes a very real threat if they can get the power to do it. And given the cavalier way Mitch McConnell treated the presidential appointment process when Obama was president, the Democrats have all the justification they need to enlarge the court to, say, 15 with 6 more Democratic appointments.
The Republican Party has shown the will to wreck democratic institutions and traditions if it helps them win in the short run. To expect better from Democrats is unrealistic.
15
We're at the point of slightly reversing the dreadful (and may I say "un-American" without being thought completely naive?) run of legislative and executive tyranny. But how can balance and commitment to principle be restored, and then maintained, in the judiciary?
The Chief Justice is the only one on the court whose reputation will be built on the jurisprudential conduct of its members during his "regnancy." History records, and the hallowed profession remembers, whether and how the Chief influences both procedural tenor and that crucial matter of "commitment to principle." Despite the constant foolishness of Justice Scalia (apparently now echoed by Justice Thomas), jurisprudential principle and their application are not evident to all--and their expression in procedure and choice are far from given.
Will this court be known for renegade conservatism, with a growing record of 5-4 (perhaps later, even 6-3) decisions drawn entirely on ideologic lines? It is all but certain that it will create a record built on conservative judicial interpretations, but it is an open question whether the Roberts Court will have made room for "timely even-handedness." Such even-handedness, in order to be evident, will have to be created in the face of majoritarian exhortations that at times will look like nothing other than bullying of the sort recounted in this article.
3
When will we have people in power who are kind, compassionate and not greed-driven defenders of rapacious capitalism? Attacking Planned Parenthood, which provides health care to low-income women, because we don't have universal health care, which these 'conservatives' also oppose. Why is this country so devoted to mindless primitivism? Something in the water? Can't they return to Mordor where they fit in better?
11
Chief Justice John Roberts already has too much to answer for, most notably for his silent tolerance of Senator Mitch McConnell (R-Ky.) ideologically forestalling a hearing for Obama's court nominee Merrick Garland. The court had to convene that October with only eight justices. Short-handed, the court deadlocked on a number of issues and declined to hear others. Very clearly, justice was not fully served in any of those particular cases.
Judge Roberts should have written an open letter to Senator McConnell (R-Ky.) demanding a hearing for Garland, and he should have done so as soon as McConnell (R-Ky.) declared that he would decline to hold hearings on Garland. Roberts would have known that several cases would not be fully served. He will go into history as having permitted those failures.
14
"It’s odd to think of this most powerful person in the federal judiciary, 13 years into his tenure, as needing a friend, but perhaps he does, and just maybe Brett Kavanaugh is it."
Had to smile at this one because I am sure the friendship started with Judge Kavanaugh saying to Judge Roberts, "I like beer. Do you like beer?", and the bromance was born.
2
Roberts and Kavanaugh are the fathers of young women. Hard to imagine these “great dads” giving the government power over the bodies of their own daughters in 2019.
5
It's so revealing that Justice Thomas relied on videos containing fake evidence to support his argument that the court should review Gee v. Planned Parenthood. Based on that simple fact alone, how can we believe that Justice Thomas "neutrally applies the law?"
6
Some evidence of moderation.
With Kavanaugh, Gorsuch, Alito, and Thomas clearly in the back pocket of the far right, it is incumbent upon CJ Roberts to continue to demonstrate the independence he showed in reaffirming the constitutionality of the Affordable Care Act.
4
Ms. Greenhouse, I just love reading you. You are a masterful interpreter of the un-interperet-able.
5
Aso from Federalist 78 (Hamilton):
"The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body."
I am very pleased to see the conservative justices demonstrating the intellectual courage to express differing opinions. It would serve the court and the nation well if all the Justices acted independent of political orthodoxies and partisanship. As we see from the above, that is what the Founders relied on them to do.
2
Doctrinaire Conservatives have been the leadership of the Republicans sine William Howard Taft and further defined by Dwight D. Eisenhower. Social moderation and fiscal temperance. Chief Roberts fits that image to a T. Judge Kavanaugh is a member of America's gentry and educated class. He is not a reactionary nor a puppet of Sen. Mitch McConnell. He harkens back to judges much like John C. Clarke (1916) If anything Roberts move toward the center may in time bring Clarence Thomas over as Thomas wants to be remembered in his tory in a positive way. The Republicans in congress are to reactionary, the Roberts Supreme Court will not join them.
1
Reading the comments points to the truth that the Supreme Court itself is in danger of sinking lower in public opinion than mustachioed used car salesmen.
Justice Roberts may be presiding over a SCOTUS soon to be respected as much as Thomas, which is to say, not at all. And what will that mean to the court's rulings, already seen as partisan end runs around democracy?
The SCOTUS has become just another insideous Republican Party affront to our democratic republic. Prove that wrong Justice Roberts. If you can.
7
@JABarry:
The Court’s track record is not all that good.
In the Dred Scott case the court practically launched the Civil War. The post Civil War amendments to the constitution were directed at ensuring that the Dred Scott decision was reversed. Chief Justice Taney, who replaces Justice Marshall made the mistake of conflating his political position on the issue as being a nation building (or in that case, nation saving, and thus institution saving decision). What’s more, he did not have to take that case. He based his decision on originalism, and decided that racism was built into the constitution because the founders had been racist, and so believed that slave’s were not “men” in the minds of the framers, and so slaves did not qualify for consideration of such rights, and could not be citizens. (Which is why the constitution was amended to make birth a qualifying event for citizenship). Please note some cons today adhere to originalism. Taney’s partisan decision made the war inevitable.
The court later authorized separate but equal, again finding on behalf of racism.
The court later stymied the remedies to the Great Depression until it became evident that the institution was undermining itself.
Recently the court decided that Speech is money, Corporations are persons, and in Free Enterprise Club made it impossible to have floating point public campaign contributions as an attempt to make campaigns financially balanced contests.
Flawed? Yeah. But at least one likes beer.
5
I’m still on the third in a series of academic papers I wrote while teaching law in South Korea (two of which I published there with another professor from my law school) examining Max Weber’s postulates that bureaucratic institutions tend to act to perpetuate themselves and the Supreme Court.
The thesis runs like this: that judges generally vote along party lines where there is a polical thread in the issue in question, but when they don’t, when they break away from towing the party line its generally for reasons of institution building (protecting or strengthening the institution that is the Supreme Court) though in some cases, especially in the early years, institution building could be conflated (and confused) with nation building.
The first and most obvious case of this Marbury vs Madison. Marbury was a Federalist suing to get his commission. Madison was a Dem-Rep Sec or State, charged with issuing commissions. The commission was already signed. All that was required was for it to be delivered (issued). The Chief Justice, John Marshall was a federalist. He obviously wanted to decide in favor of his party. The problem was Marshall lacked the means to enforce such a decision, so ruling for Marbury would render the court impudent. So he shifted into institution building mode, claimed for the Court the right to decide constitutionality of legislation, found fault with the law that Marbury’s claim rested on, and ruled in favor of Madison. This pattern still persists.
2
Roberts ACA decision was flawed. He & Kavanaugh might be old school republican but as catholics might be influenced by Catholic social teaching which means they can’t always come down on the side of Big$. You don’t need to be a prophet to see that deciding against ACA would long term be disasterous for GOP: either 50% of the people w/out health insurance & dying in the street &/or drift to Medicare for all.
So Roberts saved the ACA but his reasoning is flawed.
The Commerce Clause puts management of the econ in the Fed’l Govt’s hands. Econ was a new field, created in 1776 with publication Wealth of Nations. In 1787 when the constitution was created, little was understood about econ. The constitution gives control of interstate econ ie the national economy to the Fed’l Gov’t. This left intrAstate commerce by default in early minds on the constitution in the hands of states.
But the Fed’l Papers & subsequent decisions state where the constitution grants a responsibility to the Fed’l Govt it also by implication grants the means.
By the 1930s we knew that econ is goverened by the law of supply & demand & that it doesn’t stop @ a state’s edge. This meant laws that govern econ had broad powers w/in & not just between states. The rich on the right hated this because it allowed the Fed’l govt to reg distribution of bargaining power & so wealth. By finding for the ACA based on power to tax, not regulate commerce, Robert’s was trying to pull a Marshall, on behalf of GOP.
1
Is it possible that Robert’s concern for the integrity of the court hints at a more fearsome worry that he not end up in the history books as the Chief Justice of a Court with no voice or power beyond the walls of the building where it sits?
The authority of the American government comes solely from the authority of the governed. Boil the fat out of it all, and “We, the People” remains the bedrock that is to have the final say. But with voter suppression, gerrymandering, and outright theft as in Garland and the Republican jackboots in state legislatures, a conservative minority now makes the laws that the voting majority of America disagrees with. Clearly, that will not last, and if ballots can no longer reset the balance (as in Wisconsin), then other, more revolutionary forms will surface.
Roberts knows that the majority of America believes in a woman’s right to choose, and that should the Alitos have their way, public dissent is not off the table. It's not fancy to predict that if abortion is declared illegal, states like NY and California will openly defy the court and affirm that abortion remains the law in their states. With no power of enforcement of its own, and with a post-2020 Executive agreeing with the states and refusing to act, the result would be a Court that decides Law, but Law with no authority; supreme, but in name only; and worse, a court with Roberts at the helm. To avoid that, his neutering the court's Terrible Three on the Right is essential.
15
Ms Greenhouse is a national treasure
15
Because the first Bush, jr. election and the Trump election were stolen elections all judges appointed during the terms of junior and Trump are illegitimate. The least abrasive solution is to add Merrick Garland and one justice appointed by the next Democratically elected president to SCOTUS. That makes eleven justices who will serve until attrition reduces the count to nine.
14
Where is Merrick Garland, now that we could've needed him?
7
Ms. Greenhouse's proposition that the Planned Parenthood claims have been "thoroughly debunked" is itself bunk. https://www.nationalreview.com/2016/07/planned-parenthood-videos-debunking-debunkers/
1
@CHM: Nope. The makers of the video lied about Planned Parenthood illegally selling fetal tissue. PP donated tissue for research purposes within legal parameters. The anti-choice videomakers redacted the video to make it appear as if PP broke the law. They were charged subsequently with 15 felonies...
1
@CHM
1) National Review, really ? That author is an extreme Right Wing Religious hack.
2) Investigations at every level of Gubmint and in numerous Courts found these videos to be not only false but worthy of legal charges.
3) Bunk is bunk no matter what your position is on a woman’s right to control her own body.
Thank you for helping to educate the public on the politics of the Supreme Court.
At least since the Lewis Powell memo that resulted in Nixon appointing him to the Supreme Court, things have worsened not only in all three branches, but for the public at large.
Thankfully, there is a higher court - the court of public opinion.
We the people are now awakening to what has been happening to us all.
See https://www.legalreader.com/elections-for-the-people/
1
Who will win the battle of the right wing Supreme Stooges? And why would they even think for a minute that they have any legitimacy after the coup in 2000 when they appointed GW as President, or when they gutted the Voting Rights Act to help suppress minority votes.
4
Contact john roberts' court and let him know you ain't buying this political theater of his.
https://www.supremecourt.gov/contact/contact_pio.aspx
2
Brett kavanaugh?
Oh the "judge" who threatened, Secretary Clinton and half the country with judicial revenge during his lie filled, tear filled job interview?
Oh yeah, he's a real peach.
8
"Is there a split among conservatives between ideology and the court’s long-term legitimacy?"
One can only hope. Because a Supreme Court with five Justices hell-bent on an agenda derived from the worst policy dreams of Newt Gingrich, Paul Ryan and Donald Trump would soon give us examples of the worst decisions since Dred Scott v. Sanford and Lochner v. New York. A few such decisions might not provoke a new Civil War or make the next economic crash impossible to deal with, but they would clearly strip the Court of its legitimacy.
7
"We know Chief Justice Roberts is concerned about public perception of the Supreme Court."
Yes we do.
I don't hear from my own family as often as I hear from mr. roberts trying to convince us his bought and paid for court, isn't a bought and paid for court.
Jeez dude, if you were this concerned with how your joke of a court looks, you should have spoken up when gorsuch and mcconnell hijacked 1/3 of our government because they hated the black president.
And again when the sexual deviant kavanaugh lied repeatedly while under oath.
In case you didn't know mr. roberts, lying while under oath is a crime.
Who knows, maybe you're a poor lawyer as well as being a poor chief justice..mr. roberts.
7
Roberts does not need a friend! He will forever be identitified as Cheif Justice CItizens United! The fact that THomas ignores the "fake news" video created ti evicerate Planed Parenthood only places him futher out of touch with the actual and #metoo world we live in these days.
The facts that the conservatives dont want to accept that teen and young adult pregnancy is the single largest economic punishment for young women and create bonds of dependency, on the welfare and social sysytems of this country through..... medicaid, unemployment, should not escape any reader of this article....especially after the baby is born. The subjegation of women, families and children born without the prenatal care, the health insurance, the economic support provided by medicaid, and family assistance, so they can get back to work and pay for their child in a one income home, is the conservative mantra, yet the very antithesis of their religious foundations! These right wing 'small govenment' originalists are frauds.... and this very cases shows it!!!!!!!!!! Why would PP be kicked out of medicaid in rural america when it is the only, only, family planning, health provider within hundreds of miles around? WHat purpose does that serve other than to deny essential medical care to the very women and young mothers who need it the most!!!!!
3
Scotus has the blood of 60 million babies on its hands. To what sort of "legitimacy" do you refer?
@dickwest
Fetuses are not babies.
1
@dickwest
A fertilized cluster of cells is not a baby. At least 20 times the number of pregnancies are terminated by spontaneous abortion as by human-induced ones:
https://www.scotpho.org.uk/population-dynamics/pregnancy-births-and-maternity/data/miscarriages-and-abortions/
3
This country has survived far-worse Supreme Court Justices than Clarence Thomas.
Although there is a considerable competition for the prize of worst one of them all, in my book he was James Clark McReynolds, an anti-Semite, misogynist and hater-of-blacks of the very first water.
We will survive Mr. Kavanaugh, Mr. Gorsuch and Mr. Alito too.
https://en.wikipedia.org/wiki/James_Clark_McReynolds
2
Just goes to show how befuddlingly idiotic judicial ideologs are and how flawed the logic of "God fearing" becomes as a Supreme Court individual. They might as well burn the Constitution and have morning bible reading.
1
Thanks.
I am of the opinion that the Court of Public Opinion is needed now more than ever to hold the Supreme Court accountable to we the people. See
https://www.legalreader.com/elections-for-the-people/
As always, Greenhouse is gold. Thank you, and please keep columns like these coming, Linda. No one else is writing them, and I have a feeling we are going to desperately need keen insight into the inner workings of the Supreme Court in the coming months.
2
How utterly disingenuous of Thomas to quote Federalist 78 when his every vote on the Court directly enables his supporters on the right who would do exactly the opposite of the principles in 78.
He appears totally unaware of the absurdity of his contradictions. What a disgrace, along with knee-jerk toadies Alito and Gorsuch.
7
Thomas can talk?
Whoda' thunk it?!?
3
Right-wing activist Justices complaining (in their dissent) that the Court is “abdicating its judicial duty” by not hearing the Planned Parenthood case is outright maddening.
It is those same rabidly partisan justices who so shockingly refused to take on partisan gerrymandering, which deprives our republic from its most central, most foundational “one person – one vote” principle.
These Justices deserve, at best, to be legal commentators on Fox or Infowars.
8
Thomas should never have been appointed by that mediocrity, George H.W. Bush, in the first place!
2
Mr. roberts, as you can see, nobody is buying it.
Your partisan court is a joke and your name will be Mudd in the history books.
Bravo you bought and paid for milquetoast.
2
I once heard a priest give his opinion about the early scourge of HIV. The priest said that “only through so much pain and suffering, will we reach redemption.”
You know what? I sincerely hope that SCOTUS kills all of the ACA and leaves however many millions of Americans in pain and suffering. Perhaps then the public will finally learn that Republicans reserve for themselves the right to lie, cheat and steal and the Court knows it and encourages it.
It is the job of the NYT to expose the Court and the Republicans for who they really are. I sincerely hope you do. It is overdue.
Mr. roberts, until gorsuch* and kavanaugh step down, your kangaroo court will always be a global laughing stock and your family name and professional legacy will continue to crumble.
Scrape off those two travesties of justice then maybe you can regain some honor...if that's even important to you anymore.
2
Justice Thomas asked: “So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion.”
Balderdash.
Justice Thomas had little if anything to say for years. Silent and possibly still brooding about his confirmation process?
Today's Supreme Court, in many ways, is currently being dragged through the same Trumpian mud pit as every other institution in this country.
Why is the focus, the bad press (legitimate press) all on the republicans?
Is it bankrupt, twisted ideology?
One example is the abortion issue, another the gun issue.
Hypocrites? Or just plain stupid?
1
He doesn't say a word for decades but now Clarence Thomas is all nonplussed over a case that is 5-1 in the lower courts? The guys entire career has been an embarrassment. Go drink a Coke, Clarence.
5
A billet-doux for Linda Greenhouse: I've read you since back in the day when you earned the phrase "The Greenhouse Affect" for your insights and analysis of those 9 justices in their ivory tower, the Supreme Court, and it continues still. I learned and was entertained at the same time of the consequential nature of this elusive branch of government. Thank you for expanding my knowledge. You are a NYTimes treasure, and I hope you continue to contribute to the national conversation for years to come.
9
This is a perfect example of the fallacy of "originalism" and "textualism." Three dogmatic conservative judges pretend to themselves and to the world that they are driven solely by constitutional principles and their "judicial responsibilities" when it's clear that they just want to hear cases which they can use to entrench more conservative ideals into law and stop the centrist majority of citizens from making their own decisions. They decry liberal judges as "activist," but this is the definition of judicial activism. The irony keeps getting thicker.
10
I had no idea that Clarence Thomas could actually speak, as he has been most reluctant to to speak in the public when Court is in session and hearing cases. Of course he would comment that Planned Parenthood cases are not political. The only reason Planned Parenthood cases end up in Court is because of politics.
Is he and the other two that blind?
Planned Parenthood needs to hire a Marketing Firm to get the message out that it is not all about Abortion . It is all about Health, period. Somewhere along the line Planned Parenthood let the Right to Life group put a label on them that was not accurate. Planned Parenthood needs to become very forceful in order for their real mission to be recognized, women's and children's health.
Could it be that Roberts is going to become a tie breaker, actually filling in Kennedy's role? Or perhaps Kavanaugh. That would be quite the coup for Trump.
In the meantime, the disgraceful decisions on the Roberts Court's part regarding Voter's Rights and Citizens United are the two worst decisions that have been made so far. That battle will continue. Perhaps Roberts will grow a conscience and re-look at these horrible decisions.
In the meantime we all have to cross our fingers that the Super Women that sit as Supreme Court Justices can outsmart these guys. All they need to do is get one man on the Court to grow a conscience.
11
Just shows how short-sighted all of the leftist opposition was to Kavanaugh. There's a lot of daylight between Kavanaugh and Thomas, Alito, and Gorsuch on the right. Regardless of his past, he is probably the best one could hope for from a Trump (or even Republic) SCOTUS pick.
The headline implies the court still has legitimacy to be concerned about. There are 309 comments right now, I guess that 90% of them will question that premise.
3
Who knew Justice Thomas could provide an opinion? Surprising!
All the while he was sitting there as a silent vote for the political Right, he was seemingly thinking as well.
Shocking!
No surprise though, once he did give voice, it didn't contain fact based logic or all the details.
Ah, it is our Clarence after all....
2
If there's one bright spot in this sad state of affairs - the hard-right's control of the executive, the Senate, and the Supreme Court - it's that the hard-right folks are mostly dolts.
7
The vacuum of leadership that continues to curse our country has already led us too far down the dark road of right-wing politics. Individuals who, fifty years ago, would have been considered far-right nut-jobs are now holding forth on national TV, speaking over a banner that says "expert".
As I write this, Speaker Ryan is headed to the White House for a meeting. We'll know which spineless visitor he is because he'll probably be carrying a shiny apple and a shoeshine kit.
6
Kavanaugh, in spite of his remarkable performance during a totally dysfunctional confirmation hearing, is still a cypher. Roberts is somewhat easier to “get”. In my view he will chip away at women’s reproductive freedom with alacrity, but will under no circumstances vote to overturn Roe vs. Wade.
The problem of course is that with the newest additions to the Supreme Court, the number of partisan hacks is growing. The Supreme Court no longer represents America but rather a political party (Political Party #1) in the Maria Butina plea.
3
I don’t know if anyone has noticed. But, packing the courts is how petty dictators and fascist consolidate power. All that is needed is to turn the faction of 3 into 9 and we got ourselves a fascist court. Anyone who can’t see how it is done must be blind or longing for it.
SCOTUS will continue it rightward march till we the people vote the enablers out and set up guard rails that will keep the Court honest.
8
Why aren't they excoriated for their comments as was Justice Ginsburg for offering a private opinion of Trump!!!
7
also very important decision to come is if Trump can be subpoenad. How Roberts comes down on that could decide Trumps fate.
2
Very sad how partisan and harmful SCOTUS has become. Despite one's leanings, the refusal to seat Garland, then the Senate caving for the temperamental liar Kavannah, are a blot on "justice". Both SCOTUS and Senate with no respect for our Constitution and traditions.
4
A good decision is reached and this reporter searches for the worst possible light to shine on it. The Times' unrelenting negativity can produce serious doubt where it is unwarranted. Our institutions function very well. Stop trying to show that you can find fault with every action. The Supreme Court over time is a light unto the world full of flawed humans.
2
Maybe Justice Thomas' law clerks will read this column and, at least, engage in reasoned debate with him. But, I fear, he may not listen, and, worse, he may not have chosen any clerk who does not share his very, very narrow view of the Constitution. Alas, the times, they are a-changing . . . back.
2
Everything in Kavanaugh's personal history indicates that he ingratiates himself with the person who has the most power and influence over his situation, whether it is his father, the social ringleader at his prep school, the judge for whom he clerked, or the man who can appoint him to higher office. Right now that person is the Chief Justice, and it wouldn't be surprising if Brett turns out to be John's faithful sidekick.
Meanwhile, the Chief Justice continues to call balls and strikes in a very flexible strike zone of his own choosing. In this case, why bring down fury on the Supreme Court in a case that arouses passions because Planned Parenthood is involved, when Roe v. Wade is not at issue? When Roberts is faced with the stark and ultimate choice between the Court's place in history and a woman's control of her body, we can't feel sure that his concern for the Court's legitimacy will prevail.
By continuing to provide her illuminating insights into the Court's proceedings, LJG helps assure that the current Justices, and those who will succeed them, are subject to the scrutiny of informed public opinion. This is an all-important restraint on the otherwise unbridled power of the Court, and the best hope we have for future correctives to the Roberts Court's string of bad decisions.
5
We have an illegitimate president of the United States. Does that make this "president's" appointments of Supreme Court judges and all his chosen "official" appointees illegitimate?
4
I would like to see more conservatives on the Court -- such as Mr. Justice Black who famously said "The constitution means what it says."
If only the current right wingers could read as well as he.
2
Supreme Court justices were never meant by the Constitution or its framers to ply their ideological argumentation to the interpretation of law in a manner that affects the health and well-being of, at least, 50% of the American population.
Even more to the point, the framers never intended that the justices should argue their cases through the mendacity, deception or critical omission displayed in this case by justices Thomas, Alito and Gorsuch.
3
The judiciary does not operate in a vacuum, and the ACA decision out of Texas could be the basis for a legislative rethinking of baseline healthcare, which is overdue eight years after the ACA was passed. Gee v. Panned Parenthood also invites a more thorough political consideration of healthcare issues, and is a precursor to a more systematic baseline healthcare system. The question? When can patients complain about systemic care decisions (whether at the state or federal levels)? Telegraphing the importance of these issues is neither snarky nor foolish. As for the inner workings of the Court, Gee does suggest that Justice Kavanaugh may lean centrist, but that was true from the git go. No surprise.
What a masterful piece. Thank you Ms. Greenhouse for cutting through the fog and describing with such clarity the pivotal issue facing the Supreme Court.
As with many difficult issues of the day, when you scrape aside all of the complexity and the opaqueness, it comes down to individuals and their moral codes, Do they truly believe in the impartial application of the law, which is essential to the continued legitimacy of the Court, or are they only interested in political victories, an 'ends justifies the means' approach.
We know on which side of this divide the Chief Justice stands, and in spite of his conservatism he has my respect. We can only hope that the newest justice stands with him.
525
@Steve
I agree - her essays are always terrific - and illuminating.
21
@Steve
Agree. So well written, and dripping with experience and credibility.
11
@Steve
" We can only hope that the newest justice stands with him."
I wonder if that is what you call a forlorn one. Hope, I mean.
4
Let's hope there is a divide on the right, or every major reform since the Progressive Era could possibly be struck down. What I've read about decisions by both Gorsuch and Kavanaugh in many areas is not reassuring.
4
"We are not ‘to consult popularity,’ but instead to rely on ‘nothing but the Constitution and the laws'."
Thomas is articulating the Hail Mary Pass mantra of the Federalist Society -- if there is one world that suggests a complication in the law, then the possibility of an infraction must govern the decision. Forget about the spirit of the law. Toss legislative history out the window.
3
Well, so much for the belief that justices, in the words of Justice Roberts, just call "balls and strikes." It appears that our Supreme Court umpires move strike zones and even change ballparks whenever their right team is losing.
3
Brett, saving The ACA, as laudable as that is, won't unstrangle Professor Ford or make your lies, while under oath, any less corrosive to the public's perception of robert's obviously compromised court..
You should clearly resign mr. kavanaugh as should the other joke justice, usurper gorsuch*.
5
I don't really care how kavanaugh rules on anything, ever.
He tried to rape a teenager and lied repeatedly during his confirmation hearing.
That should have been 'game over' but it wasn't and now all supreme court rulings are tarnished because the deviant was part of those rulings.
The other one, gorsuch* is an embarrassment too but that's another story.
Mr. roberts, we're not all mouth breathing Fox News consumers.
Your koch-owned party keeps forgetting that.
5
I find it refreshing that john roberts realizes his court is a global laughing stock but I also find it hilarious that roberts thinks he can change the perception that he, and his court, are bought and paid for stooges of the kochs with stories like these.
Usurper gorsuch* is a crook who, along with mitch mcconnell held 1/3 of our government hostage because the racist mcconnell hated the black president and john roberts said nothing.
Gorsuch* is a disgrace.
Deviant kavanaugh (yes, I think he tried to rape Ford) lied repeatedly while under oath and the whole world saw him lie repeatedly while under oath and john roberts said nothing.
Kavanaugh is a disgrace.
But the biggest disgrace of all is john roberts and his kangaroo court.
What a schmuck!
2
Responding responsibly on social issues ( which hopefully includes the environment) will certainly be welcomed, but we can expect this court to be reliably pro business and anti labor for some time yet.
2
Its interesting that within the center of a decades long effort to subvert the will of the majority and replace it with the will of an extreme right wing comes the first glimmer of a larger awareness of what such destructive and ultimately anti democratic tactics have wrought. The long forgotten wisdom that only a legitimate government can long endure is starting to be seen in the decisions of our now solid right wing court. It may be pangs of patriotic conscience or just that his name is on the court, but Roberts seems to be putting a brake on the judicial coup that Mitch McConnel has worked so hard to accomplish. If Roberts is actually starting to take his oath seriously he may be the only person standing between democracy and the fascism of the looming one party state. Here's hoping that the spirit of democracy can infect another heart in this third and distorted branch of government.
9
@Bobotheclown
You must understand that it is in Mitch's heritage. He is an Alumnus of the University of Louisville, a place where winning is all important. Winning is far more important than playing by the rules. The strategy is to win, and rule infractions are only cheating if you are caught.
There are two aspects of leadership,1) inspiring followers 2) knowing where to lead them.
1
Free choice of provider, be it Medicare or the ACA, is something Republicans rallied for throughout Obama’s implementation of the ACA. It was one of their top arguments against, along with the prospect of “death panels”. I can see why the dissenting conservative justices slinked away from this case. If the court came to a decision against freely choosing a provider, it would have very publicly contradicted Mitch McConnell’s position against Obamacare.
3
I do think it's too soon to read the tea leaves on Kavanaugh. If I had to guess, new Justices are inevitably assigned a mentor when first arriving at the court. How that process works is another black box. Did Roberts choose Kavanaugh or did Kavanaugh choose Roberts? Maybe something in between? We also don't know whether the relationship will have a lasting impact on Kavanaugh's judgments once his orientation is over. Basically, who knows?
However, Roberts does appear to be pivoting center as most sensible commentators predicted he would. We'll continue wondering whether Kavanaugh is along for the ride. The question for Roberts though is whether his moderation is a passing fancy. Roberts is operating on a longer political timeline than Trump. He has the opportunity to simply wait until Trump is gone before addressing explicitly partisan cases.
In so far as the court is impartial at all, I would think ruling on abortion one way or the other is politically motivated until Trump is either removed, re-elected, or voted out. Even hearing an abortion related case places a finger on the scale in favor of Trump. "See all the great judges I appointed" or so Trump's argument to evangelicals goes. Roberts might ultimately agree with Thomas but shelving the case is the right decision for now.
2
@Andy You don't need to read any tea leaves--you can just read Kavanaugh's long history of judicial practice and opinions to see this is not surprising. Relative to the three dissenters, Kavanaugh is a moderate justice. You should be thankful he was appointed rather than Trump's secondary choices, all of whom were farther to the right.
3
I wouldn't say the allegations against Planned Parenthood have been "thoroughly debunked." PP does collect fetal tissue for transfer to other entities, and it does receive payment for doing so. So PP provides a product (fetal tissue) and receives cash for doing so. That sounds like a sale to me. Whether they make a profit on the sale is irrelevant. As a non-profit PP doesn't make a profit on any of its services but it does cover its costs.
The only thing debunked is the claim that PP's provision of fetal tissue in exchange for reimbursement of expenses is illegal. And there may still be illegal actions by PP. PP has not denied the statement in the video by one of its employees that procedures for an abortion where fetal tissue will be recovered differs from other abortions. That is technically illegal.
5
@J. Waddell
The fact that even a Supreme Court Justice (Thomas) persists in promoting as surreptitious and illegal, this long established process for handling fetal tissue, shows, for all to see, that this dissent thinly veils a deep vein of deceit. Clearly, this is about nothing, if it's not about opposing a woman's right to choose. Period.
3
Using Roe v. Wade as example, the judges thinking it wrong do so not on ideology but on the application of legal principles, mainly that there is an not implied right of privacy in the bill of rights as held in Griswold v. Connectuct finding Connecticuts law in birth control a violation of the implied right of privacy, which is stated in many state constitutions. Their position is based on original intent when interpretating the Constitution which assumes a nonexistent precision in language. Even the meaning of high crimes and misdemeanors is vague.
Recall the Terry Schiavo case where the Federal Courts found unconstitutional Bush's grandstand special law trampling on Florida's right to die law, and the Supreme Court refused to hear the matter at all.
@Carry On Right. Finding an abortion right in the constitution is an exercise in political ideology, not legal interpretation--regardless of whether you think that right should exist.
1
As has been stated elsewhere in these pages, Republicans in leadership are finding themselves standing like a dog who finally caught the rear bumper of a car--confused what to do next, or even what to want the next step to be. This applies no less to the justices.
My one small ray of light over these past couple of years, judicially speaking, is when judges and justices have shown themselves to at least sometimes let the law override their own personal politics and prejudices. I give credit to Chief Justice Roberts for being more judicially moderate than I feared he would be.
8
The idea that the original intent of the framers should in some way be paramount is thoroughly debunked by the framers themselves, who not only foresaw the need to amend the foundational document, but did so themselves, seeing an urgent need for a Bill of Rights, and installing the first ten amendments themselves.
If their original intent held sway, only white male landowners would be able to vote, and Clarence Thomas would be counted as 3/5 of a man.
Not only that, but the concept of Judicial Review is counter to original intent, being entirely the invention of Chief Justice John Marshall in Marbury v. Madison, some 15 years after the Constitution was ratified.
5
@Paul The concept of judicial review of congressional acts was neither the invention of John Marshall nor beyond the original intent of the framers. In Federalist No. 78, - published in 1788, before the Constitution was ratified and 15 years before Marbury - Hamilton raised it as among the legitimate functions of the judiciary. It was first applied to strike down an act of Congress in Marbury, but it was hardly novel. If it were, in fact, so offensive to the role the framers envision for the Court, there were certainly enough alive in 1803 to object to it's use in Marbury. Moreover, there was nary a peep in Congress over the Court's judicial review of one of its own acts.
4
@Byron
With everything I have read recently about "original intent" or "originalism", the idea that judicial review was in the minds of the framers before 1803 is something I've not seen before. Thank you for this reference to Federalist No. 78. It reminds me that I need to "crack that book" again.
But at the same time, I think Paul's and others' criticism of original intent in a lot of areas are generally valid, and there isn't enough discussion in the media of how vague (and like it or not) open to interpretation the language of the Constitution truly is.
4
@Byron
Yeah, but Hamilton also discussed the import of “a well regulated militia,” but Scalia threw that, and the first clause of a two clause amendment, right into the shredder in Heller.
That left clause two of two, and Scalia shot that one full of holes by enumerating a wide swath of legitimate government infringements on the right to keep and bear arms. The most laughably self serving of which was upholding HIS right to a workplace free of patriots keeping and bearing arms near him.
The point is that there is no consistency to any argument in favor of “textualism,” or “original intent.”
Since there is no mention of marriage in the Constitution, the founders’ Tenth Amendment would reserve regulation of that to the states. So an originalist would, really *should* argue that not only was Obergefell wrongly decided, but so was Loving v. Virginia, the precedent upon which Obergefell was built. If Loving was wrongly decided, then Clarence Thomas, of Virginia, would be voting to void his own marriage. What are the odds of THAT?
4
Linda Greenhouse is exactly right about Justice Thomas's "snarky" dissent. My suspicion is that Thomas is trying to establish himself as the successor to Justice Scalia, whose withering dissents often accused other Justices of being a gang of illiterates who were acting in bad faith, rather than hewing to the Constitution.
7
The guy who never questions anyone and can’t even stay awake during hearings?
Thomas is a disaster.
The Court’s problem at the moment is simply defending itself from a President who loves his acting AG’s concept that the courts, who hold both his future and money, what there really is if it, in their hands, have no power at all over a mad executive, who believes only John Jay had the right idea of the role if the federal judiciary, stay out if the way of the Government, especially the President, and do as little as possible.
2
I second the other commenters who consider Linda Greenhouse's essays among the best things on the Times's op-ed page.
Justice Roberts, I think, prizes above all else the de-regulation of business, and is playing a long game. Although he is also a social and cultural conservative, he does not want a bunch of culture warriors (Thomas, Alito, Gorsuch) to undermine the USSC's credibility. As other commenters have suggested, the Chief Justice already has a few strikes (a metaphor he would readily recognize) against him, having voted to allow unlimited amounts of $$$ to corrupt our campaigns, while gutting the protections of the Voting Rights Act. He can ill afford more rulings such as these. So, moderate and liberal Americans now have to hope that conservative the Chief Justice will restrain his colleagues on the right. Who woulda thunk it?!
8
@Chris Rasmussen In contrast to the writing of Justice Thomas, Justice Scalia's dissents were withering, and not withered.
3
@Chris Rasmussen
Ditto. A fascinating and elucidating light inside the court. Of course, the lie of the court's 'conservatives' is that they are anything but and, instead, are pursuing a nakedly activist agenda in service not to the country but a narrow ideology. Adding to the hypocrisy, they do so by attacking and tearing the court's own precedents.
Roberts is right to be concerned - it is his name that will brand this court through time, along with some pretty bad decisions. History will judge the court (and its members) by its ability to put aside personal political views in favor of truly sound reasoning that advances the principles of our republic throughout time and not merely reflect the vagaries of political and social thought nor stand in the way of human progress -- not something done well by this court, especially if it can't neutralize the intellectual vapidity and legal disingenuity of its so-called conservative wing.
Our only hope now is that Kavanaugh has the same respect for the court the Roberts seems to be coming around to appreciate.
1
Ms. Greenhouse columns are worth 10 times the price of my NYTimes.com subscription.
More pleases please.
12
'Justice Thomas' is an oxymoron
Thomas puts politics over the law frequently.
With the new justices, will we get more partisan political decisions ? I hope the recently appointed justices hold themselves to a higher standard.
3
Agreed, but what can one expect from a fundamentally dishonest political hack like Thomas. He represents the very worst in judicial nominees let alone justices of United States Supreme court.
3
Great read. Thank you.
6
Other than listening to herself talk what exactly was the point of Ms. greenhouse writing this piece? That reasonable people can disagree? I think most folks already know that.
1
@James - your question applies much more to your comment (and mine, to be fair) than to an article that discusses workings of the US Supreme Court, which, if you've been paying attention, has been agreeing to disagree a great deal lately.
5
@James
Maybe the point is that with three ultra-conservatives on the court already, we, the public, needs assurance that the SCOTUS still is in fact reasonable.
3
Justice Thomas is less than just. He is immoral, unethical and generally vindictive. His method and practice of the law is mean-spirited and that's being generous.
If there is way to remove Thomas, Alito and Gorsuch it should be implemented. Seeing as Mr. Trump may soon be found to be an "illegitimate" president then it may also stand to reason that Mr. Gorsuch and Mr. Kavanaugh are illegitimate appointees as well.
The Supreme Court has been corrupted by a party of three small men none of which are worthy of serving the people of the United States. Justice should be blind, fair and equitably determined not dished out as punitive ideology of political demagogues.
The long-term legitimacy of the Supreme Court is at great risk.
8
The Plan:
Pretend we aren't partisan hacks who take our marching orders from the koch-owned gop.
The Reality:
Nobody believes for a second that the john roberts court is fair and balanced.
Worse still is that the more roberts tries to paint his court as anything but a joke, the more pathetic his kangaroo court looks.
4
Who knew that legal impartiality could be anything but? That this impartiality might be subject to opinion?
Saturday Night Live should create a skit with Justice Thomas lecturing Chief Justice Roberts and Justice Kavanaugh.
3
“...neutrally applying the law is all the more important when political issues are in the background.”—Justice Clarence Thomas.
Can there be any clearer proof that this “Justice” and his fellow “originalists” are swimming in a sewer of the foulest intellectual dishonesty? The abysmal failure of the H.W. appointment is in the highest relief here. Of course, as Ms. Greenhouse writes, the fourth vote to take up Planned Parenthood was nothing but another attempt at eventually overturning Roe. Is the “Justice” so high on his right wing horse that he thinks that we’re not on to his game?
He cements his contempt for the rest of us as he resentfully holds up Federalist Paper No. 78 to invoke the absolute right of an “independent judiciary” to wreak havoc upon the Constitution in the name of rank partisan ideology.
I never thought that we would have to cheer Chief Justice John Roberts and (gulp!) Brett Kavanugh from the complete disintegration of the popular regard for the Supreme
3
It's really simple - yet a truth that will never occur to progressive zealots like Linda.
Conservatives think independently and appoach every issue on its own merits. This is why you can see arguments among conservatives about abortion, border security, or taxation.
Of course, progressive Democrats are forced or ordered to have but one opinion on such issues.
So while you never see our Leftist contingent divided about significant topics, you can never guess what a GOP-nominated Supreme Court Justice is going to think about anything.
WHICH do you think the Founders of the country hoped to see named to court benches?
@L'osservatore "Conservatives think independently and appoach every issue on its own merits."
Thanks for the chuckle. Or are you trying to lead us to conclude that Thomas and crew are not, in fact, conservatives, since he clearly tries to mislead in his "thinking" about Planned Parenthood?
For a justice to drag in a disproved allegation when writing about a group is nothing but propaganda.
4
@L'osservatore - your assertions are proof, if one needed it, that projection dysfunction is not a problem for the right wing.
3
@L'osservatore,
Sure we can.
We just ask john roberts' and his pals' actual bosses, the koch brothers.
3
Ho hum, yawn. I lived in DC for 41 years. And nothing (about K street or the SC) will change. I'm sick of lies and those who follow the money are way into lies. Trump is and all the rest were. Certainly so were the Clintons. Bill did and HRC did. And no, I didn't vote either for Sanders or Jill Stein. Next? Another revolution is necessary - and the young will carry it forward. Maybe. Democracy and laissez-faire capitalism are way over. Truth lives on. So does money. After all, the uneducated masses have always gone for kings, queens, and priests.
Now that we have absolute prove that foreign money corrupted our Presidential election, Justice Alito owes President Obama and the rest of this Country an apology.
A corruption, that through political money, has poison the Supreme Court.
Why are stubborn and arrogant typical traits of "conservative" justices?
2
Roberts realizes that there is an unqualified POTUS making decisions in the White House that make the US look like a banana republic. He is loathe to play into Trump's hand by using the Supreme Court as an instrument of the erratic president's wrath. Reputation means everything and Roberts will not squander it as long as Trump occupies the White House.
3
The unedited version of the Planned Parenthood videos show the same thing as the edited version. The video's producer has won every court case.
Planned Parenthood has taken remedial action; it no longer sells fetal tissue.
https://en.wikipedia.org/wiki/Planned_Parenthood_2015_undercover_videos_controversy
1
@William Case - thanks for providing a link that shows you are incorrect in your statements.
"Officials in twelve states initiated investigations into claims made by the videos, but none found Planned Parenthood clinics to have sold tissue for profit as alleged by CMP and other anti-abortion groups. An investigation by the U.S. House of Representatives Oversight and Government Reform Committee found no evidence of wrongdoing by Planned Parenthood."
"CMP claimed the videos were evidence of Planned Parenthood engaging in the illegal sale of fetal tissue. Their dummy corporation Biomax offered one clinic US$1,600 for tissue, but the affiliate declined the offer"
1
@b fagan
The links show the video makers won all their lawsuits. Planned Parenthood may not produce a profit by selling tissue, but it partly offset its costs by selling tissues. After the video, Planned Parenthood stop charging for tissue.
1
I am no lawyer, but: "'The Framers gave us lifetime tenure to promote ‘that independent spirit in the judges which must be essential to the faithful performance’ of the courts’ role as ‘bulwarks of a limited Constitution,’ unaffected by fleeting ‘mischiefs.’ We are not ‘to consult popularity,’ but instead to rely on ‘nothing but the Constitution and the laws.’” (Thomas). The kicker here is "independent spirit". There is little independent spirit on the right in that court, especially among the three that dissented. They are a willing tool of the extreme right wing, and rarely deviate from that, as Greenhouse has pointed out a number of times.
2
The record of the current Supreme court is not the first in history when the majority previously appointed by a party now in the minority remains loyal to cultural norms and old decisions. Unfortunately that is precisely what the Founders intended. The court was to be the last most powerful check on a president or legislature drifting toward unconstitutional abuse of piwer.
The Founder’s error was presuming such descent towards tyrrany was caused by too much democracy. It would be the passion of the mob driving the other two branches that would endanger the Republic. History supports the idea that it is rather corrupt politicians who place self-interest of their party above the public welfare, their oath of office and the constitution.
Unfortunately, only wave elections that prompt resignations and impeachment are the only sanctioned tools availabe for unseating Justices.
The only hope I have taken from the last two years of republican malfeasance has been watching John Roberts grow into his office. I am beginning to sincerely believe he might actually have the good of the Nation ahead of the good of the koch bothers and the republican party.
I have never held out any hope for Thomas, either to grow into his office or manhood.
What Ms Greenhouse said about Kavanaugh is surprising, though. It will be much less worrisome thinking there might be two swing votes on the Court to keep it from sliding into the abyss that the rest of the republican party has slid into.
5
On one level, the decision not to take review of the Planned Parenthood case is odd: if there was already a 5-3 split in favor of denying review (cert.), cert. could have been denied without waiting for a new Justice (Kavanaugh). If anything, it shows how wobbly Chief Justice Roberts is, since he apparently was unwilling to be the only conservative voting with the liberals to deny cert. (despite a circuit split). In repeatedly putting off the cert. decision when there were not enough votes to grant it, he could not have known in advance that Kavanaugh would join him and give him some cover; nor did he need the extra vote if he had the courage of his convictions. By the same token, one or more of the liberals could have voted to grant cert., but were probably afraid to do so because they could not be sure Roberts would join them on the merits.
On another level, while it’s true Roberts is an incrementalist protective of the Court’s frayed and increasingly undeserved reputation as an apolitical arbiter, and maybe Kavanaugh leans that way too, it is certainly too early to tell how deep or consequential the split on the right is. Disagreements showing up only in concurrences won’t matter much if the five conservative Justices stick together on hot-button cases involving abortion, gay rights, voter protection/gerrymandering, campaign financing, and Executive power (i.e, Trump’s abuse thereof).
I keep hearing on the news that if trump was to fire Robert mueller , we would have a constitution crisis.
We already have it .
The latest Supreme Court justice was appointed by a president who had less Americans voting for him than his opponent.
This court in no way represent this country, specially when during the mandate of the previous elected president who in his case won the popular vote had a right to select a Supreme Court justice and the majority of the Americans who voted for him were denied through him that choice by the simple decision of one man on the senate who can grant or not a vote .
The entire system is in crisis and doesn’t represent the country anymore and if those in Washington don’t wake up soon and make changes we might even regret one day the presidency of trump
1
I get the feeling right-wingers will be very upset and disappointed by many of the future decisions of Roberts and Kavanaugh. However conservative they may be, they are ultimately limited in their rulings by the actual words of the Constitution. If only Trump had selected another judge like Gorsuch or Thomas, for whom the constitution seems to have no meaning at all.
6
Thank you, Ms. Greenhouse and NYTimes for this invaluable reporting.
7
The case for limiting the age of a SC justice is urgent. Perhaps this requires amending the Constitution and so is very difficult to achieve. Alternatively, Congress needs to address this by redefining the 'life-time appointment' of a SC justice to, say, forty years on the court. Eminent jurists need to put their heads together to address this matter which originated with all the good intention of the framers but has degenerated in to a fatal flaw.
1
Thanks.
Please note the latest judicial decision on complaints against Kavanaugh.
https://www.washingtonpost.com/local/legal-issues/judiciary-dismisses-serious-misconduct-complaints-against-brett-m-kavanaugh/2018/12/18/f55416b0-0301-11e9-b6a9-0aa5c2fcc9e4_story.html?utm_term=.7fd0dcf47dfc
Also please continue to empower readers to provide oversight of the Supreme Court in the higher court of public opinion.
11
Mr. Pulliam must not have much faith in Judge Kavanaugh's intellect if he thinks he's still figuring out where the bathrooms are several months into his tenure. I was expecting a different sort of metaphor.
8
"Without bothering to mention that the allegation against Planned Parenthood has been thoroughly debunked......'
Always count on Thomas, courtesy of George H.W. Bush, to discount facts to service the most right wing propaganda.
42
@David Henry
He serves his masters. The rich Republicans, that is.
3
And I thought irony was 10,000 spoons when all you need is a knife.
3
Roberts is finally becoming concerned about his Legacy. Great. Keep the New Hires in line. Please.
14
@Phyliss Dalmatian,
Oh his legacy is already set in stone...and it ain't pretty.
1
"these particular cases arose after several states alleged that Planned Parenthood had, among other things, engaged in ‘the illegal sale of fetal organs’ and ‘fraudulent billing practices'"
If the body part allegations were proven false, what does it say about the judicial temperament of Justices who would use disinformation in their dissent? This is a really troubling glimpse into the inner workings of the Court.
35
@Ray Zielinski
Into the inner workings of Thomas, Alito and new hire Gorsuch.
Any argument to prove their opinion, whether it be true or false is just fine with those three.
19
@Ray Zielinski
Thomas got onto the bench by lying, and it continues to prove fruitful for him.
1
In my perfect world, Justice Gorsuch would resign as soon as a Democrat assumes the Presidency. In so doing, he would chastise Mitch McConnell and explain that in he (McConnell) failed to faithfully "support and defend the Constitution" -- specifically, the "Advise and Consent" clause of Article 2-- when he denied Obama a Supreme Court Nominee. This would do a lot to restore the legitimacy of the Supreme Court, and would leave Gorsuch a shining legacy. In my perfect world.
56
@Brad C Yep, when pigs fly...
1
The supreme court lost a great deal of credibility when its five republican justices elected George W. Bush to be our president in 2001. Its credibility took another hit with the Citizen's United decision, apparently intended to improve the GOP's electoral prospects by opening our elections to massive infusions of money from wealthy special interests. Looking at its five republicans justices today, I see two accused, credibly or not, of sexual harassment and one, Gorsuch, occupying a stolen seat. Roberts is right to worry about the credibility of his court. It has very little left to lose.
556
@Purple Patriot
The Florida House of Reps was ready to nominate their own slate of electors. Regardless of any ruling, congress is permitted to decide on which slate to recognize. Republicans ruled the US House of Reps. Under no circumstance could Gore have ever won.
4
@Purple Patriot
The Democrats fumbled on the Goal Line, in terms
of Florida. by not asking for a full recount of every vote
cast in the State in their initial court filings, thus, allowing the Republicans to
"run out the clock".
Gorsuch does not occupy a 'stolen seat' as the
Republican led Senate was not going to approve anyone
Obama nominated.
4
@Jay Yeah, too bad getting the most votes is not enough.
33
Chief Justice Roberts already knows his Court will be known in history for some of its worst decisions, especially Citizens United and the Voting Rights Act decisions. We can see the awful consequences of disenfranchisement and political rewards of tax breaks and deregulation playing out in each election cycle.
Roberts also knows his Court will be forever remembered for its hyperpartisan symbiosis with the most corrupt Administration in history.
So the best he can do now is try to muddy the water a little with some middle of the road decisions.
29
@Look Ahead
Citizen's United is basically the corporate version of the Dred Scott act.
Ironically, it allows people to 'vote' twice: once through their corporation, and again at the ballot box.
16
Consistently the best writing on the op-ed page - thanks.
34
Justice Roberts signed on to Citizens United and the gutting of the voting rights act and made America safe for racists in public office and foreign meddling in our elections long before Trump. For those votes alone he'll go down in history as the worst, most destructive Chief Justice since Roger Taney. Unlike Thomas and Alito, he has something resembling respect for precedent and some judicial temperament. He probably just doesn't want to be considered the worst justice EVER.
19
The fake news just keeps on rolling.
"...was fueled by a fraudulently obtained and dishonestly edited video purporting to show that Planned Parenthood clinics sell body parts of aborted fetuses. As lower courts have found, the accusation is false."
What the lower courts found is that DaVinci, a business partner of Planned Parenthood, was guilty of selling fetal body parts. These body parts were obtained from Planned Parenthood abortions. DaVinci also kicked back donations to Planned Parenthood, in an apparent pay-to-slay scheme.
3
@Robert Apparently this "apparent pay-to-slay scheme" wasn't so apparent to the judge. But no matter, Robert's on the case.
2
@Robert
Not true, CPM and the videographers were both found to have altered the videos to falsely claim Planned Parenthood did something wrong.
Planned Parenthood was exonerated by every level of Gubmint investigation as well as every Court this bogus case came before.
Talk about “fake news”
@Blank
Do your research, Everything I wrote is entirely factual.
1
There are 5 conservatives on the court and 4 liberals, but where the 5 conservatives are far from monolithic, the 4 liberals vote in lockstep. What does that mean?
I think Roberts votes defensively for the court and the judiciary, which is just one rash decision away from a crisis. The arrogance displayed by the liberals in creating a judicial tyranny, may lead to a populist revolt.
1
@wnhoke
You need to look up the word tyranny.
The conservative block on SCOTUS was put into power by Senators with control greatly disproportional to their population base. In short, the ramming of two conservative judges onto the court does not reflect the sentiments or desires of the public at large.
THAT is tyranny.
29
@wnhoke
It is tyranny when a cadre of white old oh-so-pious men want to force their religious views down the throats of women and the LGBT community as well.
1
@wnhoke So a minority on the Supreme court is exercising judicial tyranny?! Those nefarious liberals! Looks like they also stole your ability to reason logically.
2
Thank you so much for this piece. I have been waiting for someone to dig into this very thing. Could it be that Roberts is the grownup in the room that is our nation? McConnell, Ryan, and the rest of the career Republican politicians abdicated all responsibility and moral high ground when they got in bed with the orange. Kavanagh is trying to earn his props as the cool kid proving the doubters wrong. Roberts may appreciate the company in the left of far right spot but I doubt he thinks it’s a permanent situation or anything other than an effort by Kavanaugh to legitimize himself. I think the thing that keeps Roberts up at night is fear of another open seat on the court. It may force him to be a far more liberal justice than his actual ideology just to maintain legitimacy of the body. This is by far the most interesting branch of the government right now.
13
One can only hope that the Chief Justice is staking a claim on behalf of the Court.
Where was he while the Senate refused to conduct hearings on Merrick Garland? Where was he when the president railed at Judge Curiel for being "a Mexican judge?"
The Judiciary is a co-equal branch of government, and yet, it is a creature of the legislature, which, if they can muster the votes, can change the court's jurisdiction.
Perhaps the court is making comet-like turn from its reactionary apogee toward the jurisprudential center. At least, we can hope.
6
Another winning column by Ms. Greenhouse. Bravo! I have two issues to comment upon.
First, is Kavanaugh a liberal in conservative garb? I think it is indeed too soon ("still learning where the bathrooms are") to tell. But I also doubt that he has turned a new leaf in the last couple months. I think as soon as he finds where the bathrooms are, he'll start showing his real stripes.
Second, isn't it sweet irony that CJ Roberts was accused of saving "the Affordable Care Act from the Republicans" back in 2012 and is now being asked "to save the law for the Republicans. The GOP lost most races in the midterm because of Obamacare and I can only hope that the DEMS keep pounding on that issue for the next 2+ years.
Lastly, I wonder whether Sarah Palin is still alive, for if she is, I wonder what she thinks of death panels now!!
8
Just look at what has been happening in the country Bush /Gore, Gerrymandering, Citizens United, Obama not able to install the last judge GOP installs who they want Head line GOP steels seat. Here in Arizona they just installed our new senator who lost the election. The conservative GOP can not win honestly. How can anyone not see this for what it is a take over to control the courts. You have to love the line define the law as we interpert it really!
9
Would that it were so or "Way to Go," Linda.
Also, it's hard to maintain one's sense of humor in the light of current developments or (some very unnecessary advice from me) my "best" recommendation - - I refer you to the numerous columns authored by your colleague and friend, Gail Collins.
1
Chief Justice Roberts, the other Justices, and all of us should be very concerned about the legitimacy of the Supreme Court. It has already extended to corporations – pieces of paper, legal constructs – all of the human rights of actual people. We have government of the 1%, by the 1%, for the 1%... and the Supreme Court has been instrumental in allowing that to happen.
If we allow the Grifter-In-Chief and his mafia to remain in power, he may get the opportunity to appoint another Justice...
Which could very well be the end of the republic.
17
Those three "conservative" justices are activist. I am a conservative, as are Roberts and Kavanaugh. We know the difference between true conservativism and fire-brand fascism. Conservatives bow to the law as decided and only want to reign in wasteful government spending, tried-and-failed social agendas and changes that take the Constitution into a direction that hurts people and business. Most of all conservatives hate this ideological fighting. We are about pragmatism over senseless, rude posturing.
95
@Rocketscientist
I am afraid your Conservative ideals are mostly gone among the Republican party
36
@Rocketscientist
You might be partially right, but conservatives expanded wasteful spending exponentially under and with the help of the Con-Man sitting in the Oval Office.
Where is the promise of giving the Middle Class an extra 10% relief from taxes? How did the big tax-cut for the super-duper rich and companies trickle down? Where is Trump's plan of the "best healthcare ever"?
Why have the incomes of the least well off stagnated for years?
PROMISES KEPT is Trumps rally cry. Mexico is now supposedly paying for the wall because of the slightly changed NAFTA deal.
The only walls rising are and closing in around Trump are 17 investigations against him - and counting.
32
@Rocketscientist
Can you throw corporate welfare into the tidy conservative mix?
14
The real surprise for me in this bit of infighting is the voice of Mr. Thomas, who has been sullenly quiet for most of his years on the Supreme Court. In this case his silence would have been welcome and unnoticed.
SCOTUS is in great need of revision in order to do its proper job.
The first fix, aimed at a more representative body, would be to limit the term of service. A second would be some adjustments to improve the process of appointment. Unfortunately the big fix is possible only within the character of those considered - a moral commitment to non-partisan positions. Recent and glaring events could provoke a move in this direction. But probably won't.
1
@julia
I believe that Thomas remains silent during oral argument, but as the senior judge voting in the minority, he has the option of writing the dissent himself or assigning it to one of the others in the minority.
Aside from that slight correction, though, he continues to demonstrate that, contrary to the claim of G.H.W. Bush, he was and is not “the most qualified.”
I believe Linda Greenhouse is an example of the best of what the framers had in mind when they established the first amendment.
15
Politics mixed with justice makes for an evil stew. All the ingredients straight from the hand of Mitch McConnell; more than enough poison to go around.
10
Just dropping in to say you're a great writer, Linda!
8
Thomas toes the political right wing line while pretending to have an "independent spirit".
4
Clarence Thomas again has proved to be the emptiest robe on the SCOTUS. To have bestowed upon him a lifetime appointment to the highest court is an indictment of the Republican Senate and insult to the American people. A political court signals the end of justice as we once knew it, and the advent of growing judicial despotism.
15
@JLM And remember when Bush appointed him, and said he was the best man for the job? What a joke! Also, be sure to read "Strange Justice" for the real story of Thomas and sexual harassment.
1
@JLM
Puts all of the George H W funerial pomp in perspective doesn’t it.
"You didn't sound particularly bright railing about the Clintons dear". "He'll grow into the job". Maybe he'll dazzle us like Gorsuch. After he figures out how to get the dunce cap off and the chair turned in the right direction.
Grudging, spiteful, afraid.It's us GUYS, not you.If this is lost on you your scholarship is in question. Loyalty also.
Excellent analysis. Thank you, Linda.
5
Time to admit the truth. Thomas, Ailto, and Gorsuch came to the court after lying under oath that they would judge abortion cases without prejudice or prejudgment. They got their offices through perjury.
15
There are few Americans more thoroughly unqualified for his or her job than Clarence Thomas. His ignorance is breathtaking, and his opinions range from laughable to frightening while always poorly-written. The criticisms of said incompetence that easily flowed out of this dissent could reasonably apply to everything he has ever written.
16
It's reasonable to conjecture that Justice Kavanaugh will constrain any impulses toward ideological or partisan adventurism until he safely navigates through a congress or two with both houses controlled by Democrats and a Democrat in the White House.
That combination will expose him to risk of a proper investigation into the gaps between his testimony at confirmation hearings and the facts. While there might not be a 2/3 senate majority willing to remove him, he could face the choice of resignation or a humiliating impeachment. If in doubt about the veracity of his 2018 testimony, consult an experienced psychologist who works with patients on each side of sexual assaults. Justice Kavanaugh, a baseball fan, may choose to be a nearly pure umpire on the bench.
More about the fragility of the court's conservative majority at
https://www.nytimes.com/2018/10/25/opinion/supreme-court-conservatives-progressives.html?comments#permid=29156734
5
Roberts’ concern for the legitimacy of the Court should consume his every waking hour. For all who voted for Obama and Clinton the Court is illegitimate and blatantly partisan. That was Mitch McConnell’s crowning achievement—installing partisan warriors. Trump is an illegitimate president installed through a conspiracy between the Republican Party and Russia. Remember Trump is head of the Republican Party. Trump lies all the time and all those in the Party lie all the time with him. And one has to assume all judges selected by Republicans lie all the time. Put it all together and where is the trust in the courts? The Democratic electorate constitutes the intellectual and economic majority within the country. None of these people trust the federal courts. That is a problem of Biblical proportions.
241
@BillC "The Democratic electorate constitutes the intellectual and economic majority within the country". You forgot one: they're the plain old majority.
16
@BillC,
I am saving space on my hard drive. When Mitch the Macow, cries as he calls all the people who voted him out of office ungrateful wretches I intend to save the youtube video forever.
11
@Rocketscientist
What makes you think that the people of Kentucky will ever vote Mitch McConnell out of office? Or are you referring to some other Mitch?
1
Brava! Ms. Greenhouse, Brava!
7
'The roberts court'.
The punchline to a joke that is anything but funny.
6
It’s wrong to keep calling the Republicans the G.O.P. While they declared themselves defenders of those with Pre-existing Conditions during the election, they were - before, during and after - seeking to destroy this protection.
Let’s label them properly: the P.S.L. - the Party of Shameless Lying.
15
The real villain in this story is Mitch McConnell. He hijacked the system for partisan reasons, and he gloats about it.
Trump has hijacked the government for personal reasons, and he exults in his odious impersonation of Mussolini.
Our national nightmare does not end with a determination about Trump but must also include McConnell. He is an old man up for re-election in 2020 , and the future of our country will be well served if he is retired.
24
@JL
McConnell sold his wizened, crippled soul to the devil a long time ago. He is so bent that he brags about winning by cheating. He doesn’t realize that anyone can win by cheating but real victors play by the rules to win. Trump is the same. It’s pathetic. But I hope to be alive and cognizant when the mills of God, which grind exceedingly fine, grind McConnell.
Maybe what Roberts needs to save Republicans from is THEMSELVES.
If that's even possible.
10
“Now influential voices on the right are being raised in prayer for him to save the law for the Republicans.”
Some of the rest of us have prayers of our own.
“Oh Lord, preserve your faithful servant Ruthie. And if it is your will that one of our justices must pass, well... Justice Thomas seems eager to meet you...”
17
While we dither, delay, and fight over human rights, we are becoming ever more unequal as wealth accumulates in the hands of a few.
Given the present trajectory, I predict that the human race will bifurcate. As global warming threatens and the human population explodes, I believe these billionaires, will sacrifice the masses for the survival of their own.
The existence of the masses will depend on their usefulness to the trillionaire demigods who will have lifetimes of unknown length and who will have, via genetic engineering, "evolved" away from the rest of us.
But I may be wrong in supposing that humanity will stop CO2 pollution in time to leave areas of habitability on the planet.
3
Legislators go for all the policy gains they can while they have a majority. Judges, however, cannot adopt this tactic and remain legitimate.
2
When it comes to the typically excruciatingly silent Justice Thomas, I always assume that his opinions, comments and writings are supplied by his right wing ideologue law clerks. Not that all the Justices don't rely on their clerks for much of the work. It is still mind-boggling to me that people like Kavanaugh and Thomas are actually members of the U.S. Supreme Court.
9
Thank you, Linda Greenhouse, for a superb piece!
11
The Court has become a political football, not an elevated level of rational jurisprudence. The last Justice to be seated angrily threatened to get even with Democrats in his sorry confirmation hearings.
The seating of Kavanaugh changed the title of the Chief Justice to Chief Kangaroo.
22
@George Kamburoff I'm an Aussie. Don't you insult our kangaroos !!
Justice Thomas would be well advised to stop assigning devious motives to his fellow justices decisions. He should be expressing his own interpretations of the law, not telling other justices what their opinions should be. His conduct is rude and unseemly, and at the end of the day, smacks of political hackery.
28
What this article shows once again is that conservatism is generally a morally bankrupt philosophy. They have no principles and never did. Originalism was always a scam. Judicial activism shares a common thread with voter fraud: its being mostly practiced by those on the right.
22
Kavanaugh came into the court considerably chastened and weakened. I didn't see his outburst as a good thing at the time, but it might provide an opening into his soul for a little light to enter, along with instruction and assistance from his intellectuals superior. Meanwhile, Chief Justice Roberts, the man of the hour, or the next few decades of hours, demonstrates that he has read his history, both recent and distant. We know what might well threaten an activist court when the political pendulum swings away from it, and Roberts does too; he would not like the Roberts Supreme Court to be known as the one who exploded the bench, who zigged when he should have zagged.... Here's to men who have read their history.
9
Apparently Justice Thomas does not agree with Ms. Greenhouse that "the allegation against Planned Parenthood has been thoroughly debunked". But then her biases on this issue have been clear for a decade or more.
@Mark, the specific allegations Ms. Greenhouse refers to have been proven to be false like so many other wild allegations that have emerged on the Right in recent years. Maybe the Russians, in their eagerness to help their republican allies get elected and to sow discord in the US, are to blame. It's too bad so many on the Right are so gullible.
4
@Mark But it has been, Mark. Its not a matter of opinion. The tapes were pasted together to create a completely false narrative.
4
@Mark
Forget whether you think a reason is valid. The question remains, can states decide the qualifications of a program they participate in? That is the question, and reasonable people certainly disagree. Stares rights issues need to be defined, not Planned Parenthood.
It is early to access the Court to be sure but a few things are apparent. Neal Gorsuch has lived up to the arrogance and haughtiness he displayed in his confirmation hearings and we now know what to repeatedly expect. On the other hand Brett Kavanaugh, having been a political operative under Bush may have actually taken away something positive from the pummeling he took and might as a result choose to act like a justice rather than an activist political ideolouge that the Thomas three seem so eager to present. Let’s us hope that the wheel has finally turned on the Trumpian nightmare.
5
@Lawrence Garvin
I pray you are correct in your hopes for BK. However, someone, somewhere paid his debts so that he could move forward to SCOTUS. He owes and will be expected to prove it at some critical point down the line. I'd like to have more optimism, but considering the current context-follow the money.
13
After the moral immiseration of slavery enforcement by Justice Taney and his six assenting cronies, i don't believe the "long term legitimacy" of the supreme court is founded on anything other than the intellectual and moral integrity of its justices and the inherent justice of their rulings.
I appreciate the irony of saving the ACA for *and* against republicans, but Greenhouse did not highlight that avoiding a ruling in the cases cited did serve to hold the court above the momentary mischiefs of faction.
And if it takes a justice two months to find the bathrooms, we're in for a bumpy ride.
4
Since Garland, it is official, the S.C. is a partisan chamber.
There are no more just normal 5-4 decisions, the court has been officially stacked. Just listen to Thomas, he is on a mission, and thinks he has the keys to a new muscle car.
Kavanaugh had to to lay low, particularly now, and on this case; daylight as disinfectant, at least for now.
14
I would attach minimal significance to Justice Kavanaugh's position on reviewing the Planned Parenthood case. One cannot divorce his position from the timing of his confirmation fight, in which his ability to be an independent judiciary was placed in doubt before the entire nation. I think we will need several years before we can conclude that Justice Kavanaugh is the new Justice Kennedy. Indeed, there is every reason to believe that declining to hear Planned Parenthood could fall into the "fist in the velvet glove" category.
8
@Bruce Levine,
Kennedy was a sexual deviant too.
I hadn't heard that.
Is our ship of state only seeing the tip of the iceberg of the pre-Civil War states rights constitutionalist mentality on the part of the Supreme Court? There is even discussion of revisiting the "unconstitutionality" of child labor laws. Is the goal to stop the spread of "Human Rights" protections to the federal level even to the extent of reversing any previous gains not absolutely protected by constitutional amendment?
8
I have been fascinated that Brett Kavanaugh has voted centrist in two cases that I care about (the "children's lawsuit"- https://www.ourchildrenstrust.org/us/federal-lawsuit/ ). Perhaps he does, after all, have the judicial temperament. I had noted his well documented lies and of course the treatment of Dr. Ford was despicable, along with the reaction to it. But the freedom of reaching the highest pinnacle may perhaps have brought out the best in him.
I am encouraged that judges want to see the global warming/climate change argument play out to the fullest. We need that to happen!
Here's hoping?
7
"Is there a split among conservatives between ideology and the court’s long-term legitimacy?"
Why is the term "ideology" limited to conservatives? Is there no such thing as liberal ideology?
No liberal ideology exists. Liberalism in America is based upon moral certainty in their intellectual superiority and their disgust for any dissenting. Liberal judges never join the conservative, yes conservatives here have sided with the liberals. It appears only one side thinks, while the other side is comforted by moral certainty as improper in political science as it is incorrect.
1
@EWG
While Conservativism is based on intellectual certainty of their moral superiority and their disgust for any real human values.
@EWG,
Liberals are smarter so of course rightist twits occasionally make good choices by siding with us.
Law is gender, color aka race, ethnicity, national origin, faith, socioeconomics politics, education and history plus arithmetic. Law is not fair nor just nor logical nor moral nor objective. Both black African American enslavement and separate and unequal while black were legal in America.
" The law is an ass" from " Oliver Twist" by Charles Dickens
And the liberal left and the conservative right justices are separate and equal cheeks of the law sitting on the Supreme Court of the United States aka the least democratic branch of our divided limited power constitutional republic.
2
I sincerely hope Ms. Greenhouse's optimism is warranted! The romantic in me would like to think enough of the justices truly care about the rule of law. My faith was badly shaken by Bush v. Gore 531 U.S. 98 (2000), a decision, as we were taught in law school, that violated the court's prime directive!
15
‘Citizens United’ is John McCain’s most enduring legacy, and it’s also the vehicle by which our little national experiment will come to a halt.
Money is speech, corporations are people, and the corporeal nature of human beings is purely a commodified market share.
18
@ubique I don't understand why you think 'Citizens United' would be McCain's legacy. He said on camera of the decision, "...the most misquided, naive, uninformed, egregious decision of the United States Supreme Court, I think, in the 21st century." He worked with Feingold on campaign finance reform to take money out of politics.
1
@Steve S
Sometimes, intent matters. Quite often, it means nothing at all.
Here’s a suggestion to the Justices about regaining legitimacy: Admit a mistake. This past election highlighted horrendous abuses of the right of citizens to vote. Ballot harvesting, access to voting booths, suppression of minority voting, severe ID requirements—all politically motivated. If the Supreme Court could, by its own volition, decide to review their decision to eviserate the Voting Rights Act, that would do a lot to convince people that law, not politics, is the driver of legal decisions.
Is it possible for anyone to look at the disgrace of the voting suppression last month and not understand that the Supreme Court made a mistake that needs to be corrected?
74
@John Vasi, the Court had a great opportunity last year to dump the horror of gerrymandering by a Republican minority in the Wisconsin case, which had the best statistical evidence EVER presented in such a case. It could not have been more clear - 2/3rds of the state legislative seats in Wisconsin are held by Republicans in a state that votes close to 50/50 or 51% tilt toward Democrats! It's a prima facie case on its face of denial of the principal of "one man, one vote." But they overturned the Court of Appeals' decision voiding the 2011 Wisconsin Legislature redistricting. Scott Walker's and the Koch brothers' enduring legacy to the formerly great state of Wisconsin.
20
@John Vasi: The whole "State's rights" philosophy is at odds with equal protection of the law nationally.
5
@John Vasi
While they are correcting mistakes add Citizens United. That is a total disgrace,
Too late to change the totally political decision of 2000 which led us into the trillions wasted and tens of thousands of American lives lost and ruined by selecting Bush.
Those were huge mistakes. Citizens United can be reversed and should be.
7
It's not surprising that there is disagreement on the right on some of these issues. Unlike the justices on the left, who generally move in lockstep, those on the right are open-minded intellectuals, well-schooled in the law, who are looking closely at the law and precedent and aren't beholden to their cocktail party friends and outside influences or personal politics. They aren't looking to become the favorites of the New York Times and other liberal media outlets.
3
@Mike C. Funny how those open-minded intellectuals have been voting as a bloc for many years, with Kennedy so often the deciding vote.
3
@Mike C. Let me get this right. If two conservative justices agree with the liberal wing it shows independence of thought but if liberals come to the same conclusion it is mindless.
2
@Mike C.: The least objective people in the US are its loudest claimants to objectivity.
4
If the Court had consistently put aside political concerns, as Thomas now argues it should, historians would now be assessing the Presidency of Al Gore as to its place in history.
61
@Mark Cohn: The 2000 election was a landmark opportunity to make US national elections a uniform experience everywhere.
“The Wall Street Journal’s editorial response to the decision [that found Obamacare unconstitutional] is not to be missed. ”
Indeed. The message of that editorial is priceless: Democrats claim to be alarmed but are elated; Republicans claim to be elated but are alarmed.
8
Would it not be simply wonderful for us who opposed Justice Kavanaugh for him to show himself as a sane justice in the way Justice Roberts has. Clarance Thomas has been truly awful from the day he was nominated. Nothing can save his reputation as he is a bitter man and his opinions reflect that truth.
27
>
The rightwing of the court, may be divided, but if history is prologue, the rightwing always breaks to the right within the big picture..... Sure they'll toss out a few bread-crumb-decisions for liberals but the bulk of their edicts will be rightwing.
That's what politicians do, the art of the wiggle, and the Court is a political institution, like it or not.
9
Nothing makes this court look more fake than its evident incapacity to grasp the meaning of "Congress shall make no law respecting an establishment of religion", and its failure to vigorously enforce this Constitutional clause on Congress.
18
Insightful commentary. Thank you Ms. Greenhouse!
7
"If there’s any fun to be had these days in contemplating the march of events, The Wall Street Journal’s editorial response to the decision is not to be missed."
It's ironic that the WSJ has been instrumental in breaking news about the transgressions of the Trump administration while WSJ editorials have become reflexively anti "law of the land" since Trump's election.
One can only believe Murdoch's minions fear losing any credibility if the Supreme Court regains some level of sanity due to the "betrayal" of Roberts and Kavanaugh, though I suspect the latter is just biding his time before he joins the conservative nutjob wing to further undermine our democracy.
13
THE DOUBTING THOMAS Would do far better to keep his mouth shut than to engage in actively depriving women of their rights to control their bodies. He needs to go back to concocting his onanistic fantasies about discovering original intent, much like a hog gobbling down the truffles it discovers. I, for one, am greatly relieved that there is finally a splitting of the conservatives at the highest levels. There's lots more where that came from come January. The weight of Trump's gargantuan alleged crimes that caused the summary shutting of his foundation will weigh crushingly upon the shoulders of the GOPpers in the incoming Congress. The GOPpers will be reminded, in the Senate, most of all, where working across the aisle has been more often practiced than in the House of late, that Trump represents the greatest liabilty to their "party" (neither of Lincoln or even of Ford) in the 2020 elections. Now if we can just protect ourselves from further Russian involvement. One method would be mandating blockchain software nationally for all voting machines or registries as it is impossible to hack blockchain software without the hacking being detected immediately. I hope that the Democrats, for their part, will focus on blockchain software as a way of protecting the integrity of elections. Meanwhile, the Court has shown itself capable of steering away from an extremist position to reflecting other perspectives of interpreting the laws of the land. The highest court did well!
4
“Mr. Pulliam wrote in an essay titled ‘Kavanaugh: Too Soon to Be Reading Tea Leaves.’ ‘Good grief,’ Mr. Pulliam exclaimed. ‘He’s only been sitting on the court for a couple of months — still learning where the bathrooms are.’
If someone who has been on this court for two months is “still learning where the bathrooms are,” one must begin to question whether he is right for the highest court in the land. If anyone on that court needs more than a quick briefing to get up to speed, the Senate failed its “advise and consent” role and the President failed his duty to nominate a qualified candidate.
As a former teacher, I know that almost every new teacher is expected to hit the ground running when they enter their classroom for the first time. Why shouldn’t this same standard apply to someone who has sat on a U.S. Court of Appeals for twelve years, when he has been promoted to the Supreme Court of the Unites States.
14
When 4 liberal justices vote in a block, it is based on the law. If 5 conservatives vote alike, they’re political hacks. If 5 conservatives vote differently, they are disguising their prejudices. Independence must be seen as political weakness, or worse. Forbid a liberal Justice ever breaks their block.
1
@Jay. It happens.
Great to have Ms. Greenberg as such a knowledgeable SC gossip columnist. I always look forward to hearing her take on the Good, Bad and Ugly of SC politics and that she is having such a fun time doing it.
But below her interesting columns are serous business as they affect millions across the country.
I do not know about Roberts or Kavanaugh. Reading their minds may be like reading tea leaves, but it is almost certain that the likes of Thomas, Gorsuch and Alito will invariably do the wrong thing.
One note about Kavanaugh. He was appointed by Trump to save the President's behind if Trump's doings should reach the SC. Could it be that in the hurry to do that conservatives overlooked what he really believed? Is he Justice Suter in disguise? Hmmm.
7
Justice Thomas' hypocrisy is stunning. He calls for his fellow justices to consider defunding Planned Parenthood because the court should not not "consult popularity," yet his rationale rests on two debunked by apparently popular conservative lies about Planned Parenthood. Hmmmm.
14
The Supremely Corporate Court stsrted losing legitimacy with the atrocious Bush Gore decision of 2000. The Court stole the case from the proper forum, the Florida Suprme Court, stopped the ongoing recount, and have the presidency to Bush. Subsequent cases like the infamous Citizens's United decision opening the floodgates to billionaire purchase of both major parties and gutting enforcement of the Voting Rights Act in the face of massive, systematic Republican voter suppression and racist bigotry really hurt the Court's legitimacy.
Roberts did uphold the ACA but crippled it by allowing reactionary Republican states and Governors to deny millions of poor, minority residents help getting healthcare in violation of the equal protection clause. Recent refusals to correct egregious Republican Gerrymandering by the same five Repubs on the Court were also frankly racist and shameful. Maybe Roberts is finally seeing the great harm he has done along with his always-partisan fellow Republicans.
The deep illegitimacy of the Gorsuch appointment by the Resident who committed numerous federal felonies to win the election even without considering the massive illegal Russian campaign help for Republicans made it worse after Mitch McConnell violated basic decency and the US Constitution to deny Merrick Garland his hearing and seat in the court. Then Grindin Brett Kavanaugh (a purely partisan Republican operative) made the right-wing political corruption even more obvious.
12
Stay strong, conservatives. Just remember the horrific Warren court, which showed no interest in legitimacy and pushed through a revolutionary agenda. We need to seize this opportunity to push jurisprudence back in a sane direction.
1
Actually the videos in question have not been totally debunked. One particular doctor came across as callous, arrogant, and not fitting to hold an MD. A larger issue is what we as a nation do to push for better family planning and stop an end to rampant illegitimacy.
1
Last night when we retired , I asked my wife what happens when the Joint Chiefs of Staff declare a coup.
We are north of your border. I was brought up to love American and my wife grew up in America's "heartland" and still loves her country with all her heart even if her head has grave concerns.
The judiciary has no legitimacy regardless of the quality of the debate. There is no debate that Gorsuch, Kavanaugh, Alito and Thomas are on the court because of their politics not their jurisprudence. The lower courts cases and decisions are always preceded by the courts pedigree whether Republican or Democrats. I don't know why time is wasted on discussions of legitimacy Citizens United should have ended all talk of legitimacy.
A chain is only as strong as its weakest link and the list of Senators and Congressmen from your Red States is a list of people who have no respect for the basics of Democracy from hate mongers like Cruz, Cotton and Gohmert to most of the Iowa representatives and your acting Attorney General who are on the watch list of the Southern Poverty Law Center.
There is a storm brewing and many of us doubt the USA can survive with almost all your institutions compromised. The videos remain of the Ernst/ Whitaker debates for USA Republican Senator and the Iowa caucuses begin like tomorrow.
If you have to ask whether an institution has legitimacy you already know the answer.
18
I thank the Chief Justice does not want his court to be viewed by history as a knee jerk extreme conservative rubber stamp court.
Don't get me wrong, it will be conservative but with some exceptions.
Roberts already proved it with ACA, gay rights and planned parenthood decisions.
2
Excellent analysis. Always on point. I love your column. Thank you.
4
Very interesting. I hope to read this excellent column again after Justices Gorsuch and Kavanaugh have served two full terms. At some point a clear cut alliance will form and we will have some insight into future decisions. Today we are reading the entrails and tea leaves. You have the courage to state your opinion and I salute your courage.
4
It's not surprising that there is disagreement on the right on some of these issues. Unlike the justices on the left, who generally move in lockstep, those on the right are intellectuals, well schooled in the law, who are looking closely at the law and precedent and aren't beholden to their cocktail party friends and outside influences or personal politics. They aren't looking to become the favorites of the New York Times and other liberal media outlets.
2
Roberts' court will be one for the history books, and not in a good way.
8
@Chip
History will remember john roberts as the new Benedict Arnold.
2
Color me impressed with Justice Kavanaugh's conduct if Linda Greenhouse's analysis is correct. He promised Senator Susan Collins R-ME that he would honor Roe v. Wade as settled law of the land and so far he has kept his promise. I am a right to life male; but it worries me that Roe v Wade will be reversed because as a teen I delivered 180 news papers a day in Medford Ma and as I walked the largest route in the City, I read the three newspapers I was delivering. Condums were outlawed then and every year Bill Beard would be arrested for handing out condums. The papers regularly reported the death of women around the country who died having back alley abortions. Justice Harry Blackmun and his associates eliminated both problems in Roe V Wade and our country is a better place for it.
7
There are three judges that should have been appointed by the Dems because both Bush and Trump lost to the popular vote it's the only way they can win is by cheating and the our Supreme Court is now a bad joke and one we will all pay for except the billionaires of course they never pay for anything.
2
The last two appointments are illegitimate as they are the fruit of a poisonous tree. It is now clear that Trump colluded with a foreign power to steal the election. These two appointees should resign if a Democrat becomes president, and the Senate should vote on new appointees and reinstate the 60 vote rule.
Failing that, the number of Justices should be increased by two through legislation, and the 60 vote rule should not apply to any legislation that cures the results of the stolen election.
That is, if the Supreme Court is going to have any shot at legitimacy, and so we can try to get back to one nation, indivisible, with liberty and justice for all.
272
@Bailey T Dog
Alito is illegitimate as well, as the Court basically installed W. Democrats would have the Senate and Presidency, not to mention a firmly liberal Supreme Court, were it not for very successful voter suppression efforts by the Republicans. When millions of voters are erased from the voter rolls just before an election, and a Republican squeaks out a victory by a few hundred votes, democracy is not being served.
10
@Her Ladyship If you really want to get down to illegitimate try Bill Clinton on for size. He was elected with what, 43% of the vote. Give me a break. Every time someone loses they claim illegitimacy. No folks! That is how it works. Get used to it and play the game the way it is designed. This is a big reason Trump is not really very successful. He really never did understand how the Presidency, let alone the country, works.
@Bailey T Dog Were the hat on your head you would do the same thing. It's just sour grapes. Politics works this way and sometimes/often it really gets ugly. There may have been a few who voted for Trump because of some issue encouraged by a Russian, but I voted for him for the sole reason that I did not want another liberal justice on the SCOTUS. Now that he has done his duty, he can go away. In fact, it is really too bad where he has taken the GOP. I changed my voter registration to unaffiliated. The political parties are destroying our nation.
When it found a right to gay marriage enshrined in the Constitution, the Supreme Court forfeited its "long-term legitimacy."
Notwithstanding Chief Justice Roberts protestations, Americans (and their elected representatives) fully understand that it is a political institution and act accordingly.
@Steve Smith
“We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
So lesbians cannot marry because the Founders wrote “all Men”?
@Steve Smith
how is gay marriage different from interracial marriage?
1
@Kevin
In several ways. Most importantly, we fought a civil war regarding slavery and passed several federal constitutional amendments protecting the rights of African Americans. In contrast, no amendments regarding gay marriage have been passed.
We are moving rapidly toward a Supreme Court based not on the Constitution as a living document, but on conservative ideology masquerading as judicial neutrality, hiding in plain sight behind the claim of being "originalist". Antonin Scalia began this slow march, with his mind-boggling, contradictory positions on gun control, and steadfast refusal to recognize the passage of at least 2 centuries in American law and culture. Now that he's gone, Clarence Thomas has taken up the banner and, surprise of surprises, Neil Gorsuch has stepped to his side.
What is remarkable about Ms Greenhouse's insights into possible infighting among the Conservative Justices --- a capitalized label that supposedly is non-existent in the high court, but as obvious as gender on a tall dog --- is that she did not have to dig all that deep to discover them. Justice Thomas did most of the work for her, by publishing a rebuke, not of his liberal opposition, but of his supposedly ideological allies.
I'm sure he felt abandoned and betrayed, qualities not usually associated with a Supreme Court justice engaged in reasoned, logical, neutral consideration of the Constitution.
27
It seems that many conservatives are led to believe that if they vote Republican then eventually abortion will be made illegal. It works to get them enthusiastically to the polls but it seems they are being consistently mislead. At some point the dog will catch the car & this notion will be exposed for what it is; a very effective tool of voter manipulation. Though I disagree with their position on legal abortion I find it infuriating to see them used in this deceptive manner. In hopes of overturning a law they passionately disagree with they vote over & over against their own best interests when it comes to safety net issues, healthcare, minimum wage, etc.
18
@Liz You are right. I have doubted for a long time that the republicans would actually eliminate legal abortion completely. That has been one of their best issues to activate the base and get out the vote. Why would they want to give it up?
3
Among the politically correct these days it is bad form to overemphasize one's religion. Yet SCOTUS deals with religious issues every term, from wedding cakes to nativity scenes to abortion. With Catholic and many evangelical churches opposed to abortion, court struggles reflect the national turmoil. As such, it is worth noting the peculiar religious makeup of the Court today. In our nation, which is about 25% Catholic and 2% Jewish, we somehow have a Supreme Court which consists of 5 Catholics, 3 Jews, and 1 Episcopalian (who was raised Catholic) deciding questions of religion and law in America.
I do not suggest that any one Justice is overly biased, but to note that the Court has often been criticized as unrepresentative based on race and gender, yet we 'politely' overlook the odd fact that in a nation that is more than 70% Protestant, agnostic, or atheist, that vast majority of people is represented by one Justice out of 9 on issues of religion and the law. On such cases the American Protestant tradition, Pilgrims and all that, is currently mostly represented by the Jewish Justices. Odd, considering that among US presidents, only JFK was Catholic.
11
@Allfolks Equal. I've been saying exactly that for years. And I sometimes wonder if somehow, despite the fact that there is no religious test for serving on the court, if there has not been, hidden deep somewhere in the background, a religious test to serve on SCOTUS--led surrepticiously by the Catholic Church in its singular effort to overturn Roe v Wade. Dear NYT, this might be an excellent subject for investigative reporting.
4
@Allfolks Equal: Sex seems to be a more important factor than religion. Simplistic legal comparisons between race and sex lead to bad decisions. It is difficult to comprehend why a man's right to procreate does not result in a right to consent to abortion. Only a feminist would think that women have a right to procreate and men do not. It is much easier to say that all races and people of different religious beliefs have the same right to procreate. We will soon see if Justice Kavanaugh is a feminist or simply promotes equality.
1
@Pat
Anti-abortion became a Republican "litmus test" some time in the 80's, and remains so today. Certainly presidents choose from short lists of highly qualified people, and to some extent the current mix may be a tribute to educational institutions and to educational traditions among Catholic and Jewish families. We have never tried to balance the Court based on demographics of race or religion, except perhaps for the century-old 'Jewish' chair, and the immediate replacement of Justice Marshall by another black. Yet in matters where law coincides with or conflicts with existing religious doctrine, the Court must recognize the evident Original Intent of the Founders to make this a Republic of Enlightenment, free from legal domination by any religion or religious doctrine. Freedom of and from religion, no religious test for office, no religious test for citizenship, or for the right to vote. That is how they set us up, and they knew it.
"For happily the Government of the United States gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support." - Pres. Washington 1790
2
Much like the Senate, I see the Supreme Court as an institution that is not representative of our struggling democracy. I say struggling since our votes are being gerrymandered and suppressed away all for the sake of false label of "republican" or "conservative".
If we had a real representative democracy then the swing back and forth would equal out. When one party fails to uphold our democratic institutions and holds the office of President hostage by not voting on a supreme court justice (Merrick Garland) from a duly elected President and claiming for 8 years to thwart any and all effort from said President on all bills (Mitch McConnell , “The single most important thing we want to achieve is for President Obama to be a one-term president.”) rather than reach a equitable bi-partisan agreement, then yes, I think STRUGGLING is an accurate descriptor of our current state of democracy.
24
As usual, Linda Greenhouse treats us to her superb analysis and accessible writing. Thank you, Linda, for these invaluable insights!
29
And we have arrived at the current schism because Mitch McConnell decided the Constitution doesn't apply when it interferes with the right wing obsession to pack the court, blocking Judge Garland for a year, then installing Gorsuch and now Kavanaugh.
Only Roberts can manage the justices on the Right, and I believe that he will. If those justices don't like it, they can always retire, because the legitimacy is far more important than their positions or opinions.
17
@cyclist: "Congress shall make no law respecting an establishment of religion" separates the sheep from the goats on this court.
My prediction is that Justice Kagan will have a strong moderating influence on Justice Kavanaugh. She hired him as an adjunct professor at Harvard Law, and their questions in oral argument have been very similar.
12
@Dean Cordiano this goes along with something I believe. Kavanaugh is an intellectual lightweight, something that has likely become quite clear as the work of being a justice is revealed to him. This may pass but which direction it turns him is unpredictable. For now, however, he may be willing to stay under Kagan's unthreatening wing as opposed to Thomas or Alito's sneering, pompous ones.
2
I hoped that after the Kavanaugh confirmation hearings the new Associate Justice, who has two daughters, might side with women's issues more than many expected. It's early, but perhaps I might be pleasantly surprised. Or at least not 4+ depressed. One of the clearest articles on legal proceedings I have read.
9
Wether or not The Court rules on the ACA, based on Obama’s own drafters, it will crumble without a meaningful mandate. If the Supremes just stand pat, and the expansion of options that Trump has approved stay in place, there may be nothing left to rule on. Only free-riders, and the heavily subsidized will be left. So much for affordable healthcare.
2
@Jay
"Only free-riders, and the heavily subsidized will be left. So much for affordable healthcare."
Also left out of healthcare are the preexisting conditions, those who hit lifetime limits, the children over 18, and insurance obtained via work (just a few additional examples of what the law covers).
Based on your comment, it's impossible to tell if you understand what ACA mandates, but it's certainly not only "free riders and the heavily subsidized".
Will the ACA crumble without the mandate? Republicans have done there best to destroy it, but so far have not succeeded. More will be known after this year's signups are complete.
7
@Martin
The heavily subsidized are those with pre-existing illnesses. As for children over 18 who are covered by the insurance of their parents, those are mostly not the poor. (Those policy costs have been adjusted to cover their kids). I suggest you use statistics of those in the categories you describe before you decide how well I understand the law? How many are free riders and subsidized, including preexisting illnesses, and how many paid to not be part of the program, or got a waiver. Not as advertised. Not even close.
1
It’s great when you have no idea about what you say. The GOP is trapped. Voters now want health care of some sort and none of this market oriented solutions...
It would have been to their advantage to work with Obama way back when... now the voters have seen the beginning of the light at the end of the tunnel and it isn’t the GOP plans (oops what plans)!
3
The Affordable Care Act still does have a mandate, if I am understanding this correctly, but the Dollar amount of the mandate was successfully legislated to be $ 0.00. A judge said the zero dollar amount means there is no mandate. Should the judge have observed that to zero the $ does not mean there is, no mandate, but that there is no, effective, mandate.
There is an important difference between, actual legislation, and the same legislation, amended to be ineffective, in this case, rather transparently. Something still stands, no? Spirit? Intent?..
2
@dougls
Meaningful mandate means one that forces millions of healthy people to buy insurance through the overpriced ACA. Without gouging healthy millennials, there will be no insurance, just subsidized healthcare for the poor, and those with pre-existing illnesses. The spiral has already begun.
@dougls
...the mandate is the issue, we are enraged about a mandate is healthcare but think nothing about a mandate in car insurance...
1
@Carol
I am only familiar with Ohio, but car insurance is not mandated. Simply posting a bond that meets minimum coverage, it used to be $25,000, and no insurance must be bought. Minimum coverage for ACA is unlimited. Have a better comparison?
The article mentions three possible reasons for the “extended review”. However, I think there might be a fourth reason. Perhaps Justice Roberts quietly told Justice Kavanaugh that he had already decided that he would vote with the liberals on this case. In that case, Justice Kavanaugh might have decided that it would be better for conservatives if the case were not heard at all than for them to lose a 5-4 precedent setting decision.
20
Every action generates an equal and opposite reaction. The Merrick Garland affair demands the packing of the court as soon as the Democrats have the chance. Roberts may be trying to head that off, but he may be too late.
19
@Paul Ephraim
So the Republicans should have added 20 or more justices last year?
@Jay
The Democrats should add 4 to 6 more Justices when they control both Houses and the White House the next time. Appoint young Minority women to the seats and then enact legislation requiring super majority votes in the Senate to make any changes.
Thank Mitch for that reaction.
Ms. Greenhouse is a national treasure, identifying the key dynamics of the Supreme Court and interpreting them with prose that the justices themselves might envy.
81
I've always thought that Roberts was and is a good man who would fail the conservative acid test were he to be up for nomination again. Listen to his speeches at his children's graduation ceremonies: this is an independent thinker who will not be buffeted by political winds. I think he does see himself as the protector of the court's legitimacy, and I am glad. Regarding Kavanaugh, who knows? It's very early in his tenure. Perhaps he is one of those rare few who, instead of getting revenge on his accusers, instead chooses to rise above. Or, perhaps he's just biding his time. In any event, I continue to be happily surprised by the Court's marvelous unpredictability.
9
Um, Roberts, a good man? The guy who handed victory to the right wing corporate takeover of America with Citizens United, which he legislated from the bench? No.
3
@purpledog Should our law and constitution be unpredictable?
1
Why is it that when the Conservatives on the Court all vote together there is a Conspiracy and it's Judicial Activism and somehow wrong, but when the left votes together, they are just deciding the case correctly?
5
@Craig G The phrase "judicial activism" was coined by the right to attack every judge who ever issued an opinion they did not like. I have been hearing it hurled at "liberal" judges since I was in law school more than 30 years ago. Conservatives always claimed that their like-minded judges practiced "judicial restraint." What we have learned is that this claim is false. Conservative judges at all levels have been just as activist in advancing a political agenda as any liberal jurist. District Judge O'Connor's decision declaring the ACA unconstitutional is recent example. This is unfortunate for the country. As Ms. Greenhouse points out, it makes judges like John Roberts very important indeed.
39
@Craig G: The Left is right and the Right is wrong?
1
@Craig G
Why is it that, when the "Liberals" on the court all vote together, there is a conspiracy and it's judicial activism and somehow wrong, but when the "right" votes together, they are just deciding the case correctly?
3
The existence (yes, it exists, I understand) of political bias on the Justice - and - its power over the Executive (yes, it is limited, I also understand) are the issues combined in one, which I’ve been following because it is important to follow. So, I’m a follower on the NYT basis on judiciary matters for an overview in a hope for the solid grasp. Today’s hit for me was the infomation about the docket setting process, having been explained as undisclosed. Being filtered out might be cases metaphorically close to the voices of the people for being out of the national topics as large scale choirs. Expecting the Perfect Justice is only within a one’s dreamy state, I guess, but, nothing is unappropriate to expect such an expectation, I believe.
2
Do NOT be fooled, Good People. Roberts is very crafty. He and his fellow "conservatives" were put on OUR U.S. Supreme Court by catholic/corporate Robber Barons to dismantle Women's Right To Choose What They Do With Their Own Bodies, voting rights, and other civil rights.
Of course they will bide their time. What's the rush? They are there for life. They think they won and have all the time in the world to destroy OUR lives.
Boy, do WE THE PEOPLE have news for them. WE are going to DEMAND that OUR newly hired/elected Socially Conscious lawmakers increase the size of OUR U.S. Supreme Court by as many justices as necessary to neutralize the hard right, pack it with Progressive justices then pass a HARD rule or law that EVERY federal judge must be approved by 60% of OUR U.S. Senate.
That will stop these constant attacks on how WE lives OUR lives.
31
@njglea Wishful thinking. Packing the court didn't work for FDR and it won’t work now. Too bad, though.
1
@njglea
" increase the size of OUR U.S. Supreme Court by as many justices as necessary to neutralize the hard right,"
Roosevelt tried that in the 1930s. It didn't work.
A better solution would be to limit the power of the Supreme Court so that the opinions of 5 judges can't ruin the country.
1
That was then, this is now, James and Charles.
1
The legitimacy of this Supreme Court (and its predecessors) was destroyed a long time ago, with the 5-4 vote that took the Florida recount out of the hands of the state court and made George W. Bush president. Roberts followed with Citizens United ("corporations are people and political contributions won't affect the decisions of elected officials,) Janus (free riders in unions are okay) and of course the gutting of the Voting Rights Act.
Roberts is attempting to lock the barn after the barn is stolen.
84
@Phlegyas
In many people's opinion, it lost its legitimacy much earlier, when it struck down more than 40 state laws on abortion, for violating a "Constitutional right" that isn't in the Constitution.
If Justice Thomas is going to quote Federalist 78 in defense of his dissent, he would do well to read all of it.
Hamilton was clear - "The courts must not only place the Constitution higher than the laws passed by Congress, they must also place the intentions of the people ahead of the intentions of their representative".
I look forward to the day when the SCOTUS can deliberate free from the current climate of partisanship and political pressure which appears to be related to many recent decisions.
82
We can no longer think of the court as just right vs left, as we now have 3 factions: extreme right, center right and left.
It’s great to see Roberts and Kavanaugh emerge as a firewall against the absolutist strain on the right flank of the court. Hoping it continues.
20
@Dsr Not so fast. It remains to be seen whether these opinions are token bricks or a real wall.
Coming up on forty years of sturm und drang, lapping that of prohibition, the cross of gold and women’s suffrage combined, this most unnecessary of debates continues to occupy the minds of presumably sensible people. There is such melodrama, it becomes comedy as political satire — candidates actually get elected or defeated on this, ahem, “issue”. Whether the combatants realize it, it is no different than the ideologues on each side of the “guns issue”, and just as off-putting to the rest of us. Since the ability to avoid “the problem” of pregnancy is as easy as getting dressed in the morning with about as much effort required makes the debate even more absurd. Never underestimate how ignorant the formally educated are.
2
@Jackie. N.B. The Times this morning has an article noting that birth rate in the US has not been lower since 1937 — the height of the Depression.
@Jackie
The solution would be to let the issue be decided by the democratic process.
Certainly fits Linda's liberal worldview to try and highlight divisions amongst the Conservative justices.
She constantly impugns the legitimacy of the court, then hypothesizes that there are divisions that stem from defending the legitimacy of the court.
Nice work if you can get it.
4
@Wondering It was Justice Thomas, in his dissent against the decision not to grant cert, who highlighted the divisions among conservative justices. You are blaming the messenger, Ms. Greenhouse, for the message.
8
@Wondering
If you want to argue your case, you'll need to explain by first contradicting Thomas' own words.
Taking that approach, your only hope would seem to rest on asserting that the online docket is "fake news", and Thomas really didn't write those words.
2
The Affordable Care Act decision out of Texas imperils the entire McConnell-Trump agenda for the federal courts and gives Democrats a weapon for 2020. The case shows Americans just how much damage to the country can be inflicted by a single ideologically extreme, right-wing activist judge. McConnell and Trump have placed dozens of these apparatchiks on the federal bench, many of whom were rated poorly qualified by the ABA. McConnell’s GOP majority was already at risk in 2020. Even if, as the GOP hopes, the appellate courts reverse the decision out of Texas, Americans now know the GOP is responsible for populating the courts with extremists and ideologues.
90
@Victor James History doesn't repeat itself, but it does rhyme sometimes. In the big stage of history, certain common themes might be re-used. Imagine a time in our near future in which the economic distress is great and the court denies any political remedy which falls afoul of its far-right wing ideology (that ideology summed up best by the line Marie Antoinette never really said, but which would sound natural coming from the lips of Thomas or Gorsuch). Enter stage left: a new band names Roosevelt and the Court Packers....
For those observing at a distance and outside and needing to see in black and white, it’s not surprising that polarized expressions, such as “liberal” and “conservative,” are often used to build favored arguments for characterizing the behavior of the Court. I think this is simple-minded if not intellectually dishonest, especially when rooted in political preference for insisting the world be a particular way or other for the sake of moral justice, as if in possession of absolute truth. We have a Court which is very diverse; and those serving on it are highly capable jurists. This is to be celebrated. The non-predictability of Court decisions may be difficult to explain due to having an invalid premise about the Court’s membership in terms of personal political views ... which would cancel out anyway. To put it another way: Sterotyping for anything is unbecoming to the process of being informed about the thing.
4
@wak
You wrote: "We have a Court which is very diverse; and those serving on it are highly capable jurists."
Not according to the ABA. They stated that some of those on the SCOTUS are NOT qualified to serve.
15
@wak
It's not that diverse. Most of the judges are from coastal states (even Thomas, who is from Georgia) and leave the center of the country unrepresented. By comparison even the Senate and Electoral College look democratic; at least every state gets a vote.
3
@wak
"We have a court that is truly diverse?" Are you for real? Six Catholics and three Jews, all from the East Coast and educated in the same Ivy League law schools, dictating to a still Protestant country on, among other things. what religious practices and expressions are permissible? That's "diverse"?
People voted for Trump or against Hillary to shake things up. They did so without thinking about what a GOP dominated Congress and White House would do to them. Some are reverting that vote. The same applies to abortion. Imagine a population already struggling in some parts of the country to pay for education or opioid treatment or jails if our population had grown by close to 15 percent. Imagine all the women who may be mothers who get all of their medical care at planned parenthood going without.
11
@Texan,
Yes, after President Obama fixed AWOL bush's disastrous economy, stabilized the auto and housing sectors, cut unemployment to 4.9% from 10.3%, took out bin Laden, brought the Dow from 6500 to over 18,000, ignorant losers wanted to "shake things up" and get back to bad, partisan governing ASAP.
And putin's BFF was the perfect choice.
4
I would hope this analysis is correct, but have serious doubts that it is. This decision seems similar to the ACA decision where Roberts upheld that law. It involves a decision to provide healthcare to millions of people, here women. Roberts properly sees this as a "hot-button" issue, important in a time of increasing political participation and strength by women, and one that would have strong political repercussions. Kavanaugh is very aware of that issue, he has been excoriated by women, and he has two daughters. It appears to me that this is a very savvy decision to duck and cover, more a decision to follow the political winds than to push back. Kavanaugh had no problem denying a young immigrant an abortion, but he has seemingly stopped at denying poor women healthcare. I'm a strong skeptic, I'll wait and see before giving this new court any credence.
14
Roberts is right to be concerned for the court’s legitimacy. We have in Gorsuch one illegitimate member and two, Thomas and Kavanaugh, confirmed under a cloud of scandal, and three, Roberts, Gorsuch, and Kavanaugh, who were partisan operatives prior to confirmation. Kavanaugh made his lack of judicial temperament only too plain in his testimony.
The next Democratic congress should reduce the court to eight. Impeach Kavanaugh as unfit or Gorsuch as illegitimate. Remove from the Supreme Court the ability to decide contentious issues like Bush v Gore by a single vote.
John, if you’re listening: Eight is enough.
24
@James K. Lowden I agree, but think Gorsuch and Kavanaugh are both clearly illegitimate, having been appointed by an illegitimate (as we are finding out daily) President.
3
@James K. Lowden Impeachment? You understand that sixty-seven votes are required in the Senate to remove the individual in question from office, right? Good luck on that happening.
I see Thomas' point of view here, and the liberal readers of the NYT should see it also. The fact that 5 courts have ruled patients have the right to sue to keep Planned Parenthood as their provider is irrelevant. Rather in one district the court ruled patients do not have this right. This means in one district of the country Planned Parenthood can be dropped by the states as an approved health care provider. There should be a uniform, nationwide decision on this issue. The Supreme Court is being cowardly in dodging the issue.
3
If the SCOTUS is not a weapon of partisan politics, why do the partisan politicians go to such lengths to manipulate the appointments? Why have partisan cottage industries grown up to identify and groom potential appointees? We can hope that the SCOTUS will be independent of someone like Trump, but not independent of partisan politics.
25
@Old blue
Well, well, well.
Wouldn't it be nice if Kavanaugh decided he would team up with Chief Justice Roberts on all matters concerning the ACA.
NOW, if they could only recognize that voting rights for ALL US citizens IS a RIGHT and a privilege. Voters should consider it a privilege while the SCOTUS should recognize it as a RIGHT.
Strike down gerrymandering. SERIOUS jail time and major fines for voter fraud by ANYONE perpetrating it and figure out a way to make election day a legal holiday.
In other words, work FOR the American people, not just tour Republican sponsors.
34
@Old blue: The Supreme Court is a religious battleground, with a glaringly evident religious test for the office.
1
The Federalist Papers are one man's opinion piece. Sure, they can be a point in an argument. But they're not authority! Well, one man whose legacy has really been improved thanks to Broadway and great musical success. Take that, Aaron Burr. But his viewpoint was one side of the argument. So when Justice Thomas quotes it in the context of a misleading opinion, it does not dispose of the argument. Actually, the Justice's disingenuous approach strongly suggests that he's actually has nothing.
43
@Martin Veintraub
Strictly speaking, it is a mystery just who was involved in the Federalist Papers. Hamilton definitely was; many historians think James Madison and John Jay were involved. But it is true that they are not authoritative.
7
@Martin Veintraub
The POINT of the Federalist Papers were that they were instrumental in arguing that the States should ratify the Constitution as designed. They explained the thinking that went into the Constitution as it came from the men (and it was men) who drafted the Constitution.
Authoritative?
Only insofar as the drafters and authors of the Constitution allowing you inside their minds are an authority about what The Constitution means. If that's not authority, what exactly IS? Not every drafter wrote the Federalist Papers. Some of them did. We're fortunate to have those works. Otherwise we probably wouldn't have a Constitution... or a nation.
It never ceases to amaze me how little Americans know about their history. Popular musicals notwithstanding.
1
Thanks as a really interesting take on the Supremes and the Court itself as it tries to wade through issues of the day. The Planned Parenthood debate as Greenhouse states it has the Court divided w/Thomas and Alito and another on one side, with the deplorable statement Thomas makes, debunked as Greenhouse writes, that Planned Parenthood in certain locations (or one?) sold fetal organs. Then the weighty words from a Federalist paper follow to give that some heft. Yes, Roberts is on the see-saw and may have Kavanaugh to form his own group.
3
Justice Kavanaugh is treading lightly and will probably be the kind of Justice he purports to be. The recent case involving Planned Parenthood did not involve abortion but if it had there would have been a different outcome. Judging by his past cases involving abortion, he will not disappoint conservatives and will vote according to the law. He has done it before and will do it again. I do not think he sees termination of a pregnancy as a right to be provided by Medicaid funds. This should not be provided at the taxpayers expense.
2
@WPLMMTSeems to me far to early to decide what kind of Justice Mr. Kavanaugh will be, but in this conference decision he has seemed to be the kind of Justice he swore to be, not the kind his enemies fear and his supporters pray for. If so, he very well may develop after all into a worthy successor for Justice Kennedy.
@WPLMMT. It isn't. They want to stop PP from providing the many non abortion services that they provide so that they will go out of business. Never mind that many women depend on their services and will not have other options.
16
@WPLMMT - "he will not disappoint conservatives and will vote according to the law"
As if the so-called conservative viewpoint and the law are one in the same.
4
Is it possible that the trial by fire of Kavanaugh in front of the entire world has caused some serious introspection? Did everyone questioning the essence of his being cause him to consider just what kind of a person he is? Has he realized that there are consequences to one's behavior that can badly hurt others? Did a bit of Catholic guilt finally catch up with him? I'm hoping that these things did happen and Justice Kavanaugh has done some serious growing up in the past months.
People can grow and reform. It takes courage. Blind ideology prevents such growth. All aspects of life cannot be defined in the Constitution or legal code for that matter. That's why we have judges and not textualists. Applying the law requires judgement and that requires humility, understanding and compassion. Perhaps Kavanaugh found his. Let's hope. Time will tell.
154
@Bruce Rozenblit: I would very much like to believe that you're right and that Kavanaugh came out of the confirmation process a better person. But I'll withhold judgement until the new wears off.
22
@Bruce Rozenblit -
Are you saying that Grinch's heart can grow?
12
@Bruce Rozenblit
No, Kavanaugh is a complete coward. He likely has no capacity for guilt. He's craven. He's either skulking beneath Roberts skirts, currying favor with the boss, OR he's cowed by the big dog. With personalities like what Kavanaugh has demonstrated thus far, it's generally one or the other. They are all bluster and blow when faced with a weaker opponent, but put them in a subordinate position and they fold like wet tissue paper.
Character? What's that! It's an empty shell. A mirror filled with calculation and deception.
5
A fascinating analysis. Thank you. Roberts is well aware that he is in charge of keeping public faith in the high court. The only way to do that is to not give in to the horrible misinterpretations of the extreme rightists on the bench.
71
@Anthony
Just imagine if justice had prevailed and we had a sensible and not a political choice in Merrick Garland.
Oh well, maybe Thomas will retire.
8
I don't agree with much of John Roberts politics but I do believe he is acting in what he imagines the interests of the country to be.
I suspected it would be Roberts who brought some temperance to the Court going forward. He's a good man, even if I don't agree with him often.
21
Hmmm... it's interesting that Thomas would quote the Federalist Papers No. 78 to support his rationale. Yet, he signed onto the Heller decision that was in complete contravention of Federalist Papers No. 29.
Federalist Papers No. 29 is where Alexander Hamilton explains what is meant by a "well regulated militia" and surprise, it's not a mere preamble to the 2nd Amendment that can be disregarded. It meant exactly what any English speaking person would think it means, a group of individuals trained in paramilitary like fashion. Here's a quote:
"This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union 'to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.'''
But, I don't think Thomas (or Scalia for that matter) has ever been one to be burdened by hypocrisy.
309
@John Marshall A perfect example of why "originalist" positions are absurd. The Constitution was an organizational government document designed to gain support of thirteen separate nations and unite them into one body. Individuals did not consider themselves Americans, but rather Virginians, South Carolinians, New Yorkers, etc. We are no longer a conglomeration of 50 separate nations. We are one nation, with arbitrarily created states. There is no longer a need for state militias. We have the most robust and best financed national military in the world. Federalist Paper 29, like many others, is an anachronism.
68
@John Marshall - "Yet, he signed onto the Heller decision that was in complete contravention of Federalist Papers No. 29."
That's because there is no principles in today's so-called conservatism. It is what is, and should called what it is: Expediency.
What ever it takes. The end justifies the means.
130
@Disillusioned
How many of those 13 states already had state constitutions that guaranteed the individual right to own guns? 2A was an agreement to codify what most states already had provided for themselves
1
It has been that way since Ronald Reagan installed Scalia. Kennedy decided to retire to ensure that Donald and McConnell replace his with another Scalia. And they did.
22
Roberts understands that his court's rep
and his legacy is on the line.
He will do the right thing only because he ego
wil prevent him from doing otherwise.
9
@bill b
Is the right thing agreeing with liberals, or an actual debate on the issue before the court?
1
Roberts (and Kavanaugh) are engaged in a tactical retreat. They understand that if the Court were now to go to the far, far right and the Democrats were in 2020 to gain control of the House (pretty certain), the Senate (just barely possible), and the White House (a good chance) they would have the ability to (after repealing the Senate filibuster) "pack" the Court by adding two or four new Justices.
But if the Court exercises some restraint before then, there will not be sufficient anger on the left to get this done.
40
@John Graubard
The Republicans could have added as many Justices as they wanted for the past 2 years. What you are really saying, is that Democrats will do anything to control The Court, including changing the law, and Republicans were afraid to change the law. Republicans should have held a vote, and just not confirm Garland. Would that have satisfied liberals intent on controlling the Court, or just postponed the march for liberal control of all branches of government?
1
I don’t know about the march of liberal control, but, yes, absolutely, constitutionally, McConnell should have held a vote on Garland. Voted him down? Maybe. You seem sure, but on the evidence McConnell wasn’t so sure. Or he cared more to gamble for his party than to carry out the senate’s constitutional duty.
Twice in the last 20 years Republicans won the White House while losing the popular vote. Thanks to those accidents of history, the court is very conservative. And unpopular.
The Supreme Court has reliably extended the rights of corporations. Amazon workers need not be paid while the wait to exit the building. Women cannot sue for equal pay based on when the fact is discovered. Money is speech. Corporations have freedom of religion, and freedom to act on that freedom to deny contraception to their employees. This is Roberts’s legacy.
When the majority of the Supreme Court gets too far out of line with popular opinion for too long too often, yes, there will be efforts to curtail its undemocratic power. What other system would you have?
22
@James K. Lowden
Like the popular opinion of same sex marriage? How many states, or even Democrat presidential nominees supported that before The Court ruled? Laws change, as when women can sue for discrimination. There is no freedom to deny employees contraception, only if, and how a company pays for it. If you don’t think money is speech, why does everyone agree that Trump received hundreds of millions in “free advertising” by all of the media? That argument couldn’t exist if speech wasn’t associated with money. None of your examples cry out as extreme.
This essay illustrates the independence of the justices as opposed to the labels of Bush or Obama judges. Chief Justice Roberts is hoping to maintain the integrity of the court and that means hands off Roe v. Wade. Anything that touches that case, however remotely, is off limits. Trump has forced the Chief Justice to fire back. Planned Parenthood, no thanks. The last thing the court needs is more controversy. Obamacare will be upheld. The Chief Justice is making a profound point. We are independent. We have power too. Leave us be.
10
The Supreme Court has no legitimacy. That ended when the senate refused to hold confirmation hearings for Obama's nominee Merrick Garland.
It bothers Thomas, Alito and Gorsuch not at all that they benefited from a senate failure to adhere to the constitution--all while citing the Federalist Papers.
598
@Dave Betts
Absolutely. The Supreme Court has zero legitimacy since the installation of Neil Gorsuch.
76
@Dave Betts
The court lost most of its legitimacy in Gore v. Bush. They should never have stepped in to halt the recount in Florida. It has been pretty much all downhill from there. Citizen's United, gutting the Voting Rights Act, Hobby Lobby and all the rest are just judicial hit jobs on the citizens of this country. I have no respect for that court at all!
157
@Dave Betts
So if Garland lost a partisan vote, you would be content? They take place daily, and nobody seems to care. Obama had a choice for a recess appointment. He failed in his duty to seat a Justice under the existing laws. You can’t blame Republicans, when a remedy for action existed, and Obama chose not to act.
5
Excellent piece, Ms. Greenhouse. Thank you for writing it, because we non-lawyer citizens need help in understanding the murky world of SCOTUS.
For decades, I have read your columns and appreciated your appearances on television. More than any other journalist, you have helped me grasp the machinations going on behind the SCOTUS curtain.
I'm praying that Justice Kavanaugh does indeed become Chief Justice Roberts' ally in the center, because (like the majority of Americans) I crave balance and stability, not extremism and volatility. The last thing our country needs right now is for our court system to swing too far and too hard in either partisan direction.
313
@A former Republican
From an always Democrat, I will let your comments stand for my thoughts as well. Excellent insight, which I rely upon.
47
All particularly true now that very partisan judges are being confirmed even when they are clearly unqualified by a lack of basic litigation skills.
21
I have a friend who is a federal district judge. I asked him what was the hardest part of being a judge and he answered: "Having to follow the law instead of your own beliefs." Sounds like Brett is thinking along those lines. He may turn into a great Justice yet. Let us hope.
18
Perhaps it is a bias? Could the opposite be true? Do Roberts and Kavanaugh have a different case in mind that will not muddy the waters for a more conclusive decision?
6
As always, Ms. Greenhouse shines a bright light on the mysterious but all-important supreme court. I loved the closing "really fun part."
36
There are two things about the Supreme Court that could affect the way its occupants think.
One is that there is no higher office to which a Justice can be appointed. A judge in a lower court might tailor his/her opinions to appeal to those who are making appointments to higher courts; but when you are at the Supreme Court there is no higher court. And of course it is an appointment for life.
The second is that many people follow Supreme Court opinions and many of them make their way into the history books. The idea that people might be writing about your opinions many years from now must have some influence on the justices.
Ms. Greenhouse says that the Chief Justice is disliked by both sides -- liberals and conservatives. I wonder if that means that he is not invited to Federalist Society "do's". Maybe he is more concerned about how he and the court will look in the "arc of history" than he is in being invited to Federalist Society's little gatherings.
27
It is exactly the case that Roberts is blacklisted by the Federalist Society for his "traitorous" vote on the ACA,
2
Yet again I thank Professor Greenhouse for her instruction in all things judicial, and especially her sharing insights into the inner workings of the Supreme Court. To this self-admitted non-student of the Court, in observing Roberts over the years I think an alternative explanation may be that he (and perhaps his new mate Kavanaugh) is playing chess to the radicals' checkers. Convinced as I am that he and the other conservatives on the court have as their primary goal (and the one that seated many of them in the first place) the overturn of Roe, he is probably awaiting an opportunity to hear a more precise, surgical, direct, all-encompassing case to move his piece. And I further suspect that he and the others are coaching in the background on the characteristics of just such a case to bring. He's more Ali, the others more Foreman. And, as I recall, Ali prevailed.
9
Ali was a conscientious objector, don't bismerch his name by associating him with the conservative right.
Moreover, I don't he would have approved the eviseration of the voting rights act
1
Here's hoping that Justice Kavanaugh has taken Justice Sotomayor's advice to heart that everything started anew for him the day he took his seat on the Court, that he will now be judged by his jurisprudence and nothing else.
The disappointment has been the more serious Justice Gorsuch, who seems ideological more than judicial. Judge Reed O'Connor's ruling violated several non-political judicial norms that generally judges and justices on both sides of the spectrum agree on. As conservative as the 5th Circuit is, it should still overrule O'Connor on jurisprudence, not political grounds. Bad law is bad law.
In theory, if Justice Thomas is consistent (!) he's already written on the severability that should contradict O'Connor's rather strange interpretation that Congress would have acted differently if it had enough votes. Well, the minority vote does NOT define Congress's intent, the majority vote does that, and both the 5th and the SCOTUS should rule as such, regardless of politics.
20
Citizens United, judicial tolerance of extreme political gerrymandering, and judicial tolerance of voter suppression have created an overheated political pressure cooker. A country of 330 million people will only tolerate the POLITICAL will of the minority for so long. The Bill of Rights exists to protect the CIVIL rights of individuals within the population from the "tyranny of the majority." We are now in a time when the POLITICAL rights of the majority of the population - their desires on matters of POLICY from gun control, to campaign finance reform, to taxes, to health care, to environmental priorities, to energy, to infrastructure - are being trampled by the "tyranny of the minority". A democracy cannot long endure that. The benighted justices on the right, amazingly, appear not to understand this. We live in dark times.
638
@A Nobody Well said! Big money and big lies have allowed the Republican party to run rough shod on democracy, instituting minority rule at all levels of government. This cannot stand.
52
@A Nobody And speaking of the Supreme Court's advocacy of the political will of the minority, there was that little matter of Bush v. Gore back in 2001, when the Court elected the popular vote loser as president and arguably began this whole downward-sliding parade.
69
@A Nobody Seems like you use "tyranny" to describe rulings you disagree with. Courts have almost no affirmative power--power to force people to act or not act. Affirmative power belongs to the other two branches, which makes them the potential tyrants. The courts' essential power is to put limits on the other two branches, primarily in order to limit tyranny. The idea of independence of (and protection from) majority will is an important one in our constitutional government, and it should not be thrown out because it limits majority power. It is shortsighted to wish to throw out judiicial independence just because you believe you are in the majority right now. Unless you are a sheep-like follower, there will likely come a day when the majority turns on you and you will seek judicial protection.
4
"Without bothering to mention that the allegation against Planned Parenthood has been thoroughly debunked, Justice Thomas went on"
It is strange to see a Justice distort an issue to that extreme in the context of these conferences.
The other justices know that. The are the most sophisticated possible audience. They can only be offended.
What possible purpose is served by offending the other justices? It only reduces the ability to persuade, both out of emotion and out of loss of respect.
This was an odd thing to do.
361
@Mark Thomason
Thomas is an odd justice. He very rarely speaks, but he wields a mean pen. I suspect it reflects his deeply angry and resentful character.
36
@Mark Thomason
Clarence Thomas is an insult to the Court. He is best remembered as the justice without a voice. And recent statements suggest he should re-tape his snarling and large mouth. and re-read Court history, pondering Dred Scott and investigating the principle of equal protection under the law.
He is not the fun part of the Court, just the laughable part, a courtier and cartoon.
27
Anger fuels irrational and self-defeating behavior. And after all of these years, Clarence Thomas remains a very, very angry man.
28
Another possibility is that this divide in the Roberts Five is a ruse, so we will continue to repeat the oft-repeated claim that Roberts is concerned with the reputation of the SC. There is painfully little evidence of this concern.
Planned Parenthood and abortion rights are the gift that keeps on giving to the Republican party. Republicans can keep passing bills to whittle away at women's healthcare, thus giving them bona fides at election time.
47
Roberts won't be Chief Justice forever. Giving others, such as Gorsuch, the chance to shine for their oligarchic benefactors may also be part of the long game.
5
@Laura Exactly. Another con man. Words are cheap. The only reason he OK's Obamacare was that it was a Republican gift to the insurance industry.
2
I read Thomas' dissenting decision with great alarm. This is the level of his thinking? Shouldn't there be an IQ test for potential Supreme Court justices?
Sigh. I appreciate Ms. Greenhouse's optimism, but this court is beyond help. It has lost all traction with the public and is viewed as nothing more than a conservative cudgel - see Clarence's opinion. Kavanaugh will break with Roberts, I'm sure and is just being kept in tow until the raw anger about his confirmation has cooled, which I hope it never will.
266
@Joanna Stelling
I'm hoping the House will focus on impeaching him. We can outlast Trump. We can't outlast Kavanaugh.
15
@Joanna Stelling Unfortunately your are right - that is about the level of Thomas' thinking. Read any of his judgements and you'll see how shallow and simplistic his thinking is. He has never been able to demonstrate the level of fine legal dsicernment that is needed to be on the Supreme Court.
5
We speak of decisions, elections, appeals, recounts, interpretation, legislature and blame partisanship and ideology for conflicts of logic and disagreements. We focus too often on the petty and ridiculous; we exaggerate and turn the fringe into the mainstream. We discover wealth can be extracted from waste (coal, slag, ash ponds), profit from unemployment, and power makes many exempt from crimes.
What is at the heart of these issues is a common process, the way power divides in its own pursuit, how relations break down as the stakes increase, how new players bring new strategies, how internal relations change. The right being divided is a part of that process, a process that is always ever present when pretense can no longer conceal the naked push for power and conflicts flare into the open.
When a party structure is built on deception, denial, blame, and division as key processes in its politics, its approach will fail because the party has forfeited morality and common sense. It cannot build coalitions because it is built on common morality and mutual common sense.
Witness the demand for a $5 billion wall that would not even be a badly needed public works project! Kwame Nkrumah noted this paradox--blind loyalty becomes self-defeating.
"Action without thought is empty.
Thought without action is blind."
94
@walterhett -
your insights have much in common with why we declared our independence and fought a revolutionary war.
1
Interesting post Walter. An fascinating example is now birthing in the Democratic ranks. On the radical side some staunch believers like Warren, Harris, Sanders, Nadler, Waters, Schumer and maybe Schiff while the more cooperative Murray, Klobachaw, Coons, Kaine, King, Manchen and maybe Schiff. We will see if they all play nice.
1
Clearly there is more discussion and diversion of thought among the conservatives on the court than the liberals. However, I wouldn't read much into this one case and I doubt it portends anything about a future ACA case - absent the fig leaf of the mandate, the feds have no right to impose the buying of private insurance. I can't imagine the conservative justices voting to keep the ACA in those circumstances no matter whether they are seen as ideologues or institutional protectors.
2
@Chris Without the penalty, the "imposition" is a mere request. Do you object when people ask for your thoughts and prayers for the deceased because it abuses your religious freedom? I doubt that you do.
A discussion about dissent among the conservatives on the court does not mean that there is no dissent among liberals. My statement that Oprah Winfrey is black and that her best friend and the man in her life are also black does not imply that Barack Obama and Justice Clarance Thomas are white because I am not discussing them.
We will know how the conservative justices vote after the Court of Appeals upholds or overturns the recent Texas decisions on the ACA if they take the case. Will they take the case? I don't know. It may turn on the Court of Appeal's decision.
3
@Chris I really think that they've got a case ready to go (and have had one for years) with which they will dismantle Roe v. Wade. That's the big fish, not a case like this which is just a runup. Kavanaugh is not a dyed-in-the wool conservative, he's a dyed-in-the-wool reactionary, and once he's settled in and the fervor about his appointment has cooled, he'll be voting with Huey, Dewie and Louie straight down the line. Did you see his fawning, embarrassing testament to the wonders of Donald Trump? He's impressionable and can be swayed.
4
I think that Roberts is primarily concerned with the Court’s stature. As he should. This may be shaping up to be a sort of John Marshall/Andrew Jackson type of confrontation. Stay tuned.
21
The split on the right, whether in Congress, in the courts, or in right wing media is between cruelty, and those who believe those bring cruel are not being cruel enough.
219
@Marie Spot on. And over the long haul, Kavanaugh looks prone to drifting from crueler to cruelest.
16
@Marie This is a clear eyed comment. So very well said.
13
@Marie you have a way of getting to the bottom of the bottom line that I admire. the GOP has been comforting the comfortable and afflicting the afflicted since Reagan. It's all they know how to do.
21
If the American are for affordable healthcare just elected legislators to keep it in place, why would the supreme court vote against them?
If Planned Parenthood provides valuable healthcare for many, and had been slurred by a fake video, why vote against them?
That's right. The balanced and reasonable is what is wanted here.
28
@pointofdiscovery
"If the American are for affordable healthcare just elected legislators to keep it in place, why would the supreme court vote against them? "
Because the Supreme Court is supposed to ignore the will of the people. Special interest groups use it to circumvent the democratic process. A century ago, when a satirist wrote that the Supreme Court follows the election returns, he intended that as a criticism.
1
Whether they rule according to their principles or some 'scorecard' of legitimacy, they're still practicing judicial activism. Whether they obey the Big Brother donor class or the appearance of favoritism they're still not following the law. They're disobeying their oaths of office the same as Trump, who by the way is always under oath. And since personal favoritism would also be part of their deliberative process they'd really be off the rails. (Fortuitously, maybe Justice Roberts likes beer as well.)
2
Ms. Greenhouse quotes a right.wing lawyer who says it’s too soon to judge Kavanaugh’s views on politically sensitive matters. I would say that that’s the most sensible observation here.
30
@michjas ,
Politically sensitive matters?
Like strangling teenagers and lying under oath?
7
This was highly thoughtful and thought provoking. Of all the horrors of the Trump era, the potential for Roberts to tack to the center in an attempt to depoliticize the court will be interesting. Further, I wonder what, if any, impact Kavanaugh’s confirmation process will have on his approach. Friends of friends who run in Kavanaugh’s circles in DC suggested that the right was likely to be surprised by his disinterest in abortion cases. He was said to be far more likely to be conservative in other matters, but I want to be clear this is all second hand speculation.
Personally, I believe that Roberts will be a firewall for the rule of law when the inevitable Trump constutional crisis occurs. I think he understands the dangers the Trump presidency poses to our democratic institutions.
124
@MDC -- Somebody has to be the swing vote. There is a lot of power in being the swing vote. Even more if one is also Chief Justice.
We need attribute to Roberts no greater motive than personal power. He's no John Marshall.
24
@MDC The conservatives benefit from keeping abortion alive as an issue, not in actually preventing abortions. Besides, corporations have paid for a supreme court that favors corporations. They don't care what happens with abortion as long as it keeps conservatives' support.
31
@Chip
Conservative POWER-BROKERS benefit from keeping the abortion issue alive. To actual conservative people, Roe vs Wade infringes their voting rights by removing an important issue from democratic control.
4
Ms. Greenhouse is one of our sharpest SCOTUS analysts, but hoping Brett Kavanaugh ends up joining Chief Justice Roberts as a counterweight to Thomas, Alito and Gorsuch is whistling in the dark. I think Mr. Pulliam is probably closer to the truth: give Kavanaugh a little more time, and the terrible three will soon become the fearsome four.
182
@Civres
The "fearsome four" is OK, so long as it doesn't become the fearsome five.
7
@Civres
You’re not as much of a pessimist as you think. It takes 5 to tango
2