John Roberts wants to have his cake and eat it too. He both wants to be remembered as a competent Chief Justice who guided the Court through difficult waters and also to please the Republican base with meaty right-wing decisions. So he needs to make shamelessly political decisions but somehow dress them up in respectable judicial robes.
Unfortunately, between Citizens United and gutting the Voting Rights Act, everyone has figured the game out, leaving Roberts no place left to hide. What this seems to imply in the near term is that hot button issues will be deferred, where possible, until after the 2020 election. This applies, in particular, to abortion cases. If Trump wins, Roe v. Wade will be promptly overturned. If Trump loses big, a more cautious piecemeal erosion of reproductive rights will continue. But Roberts will try to tamp down abortion as a 2020 issue.
Roberts has also figured out that maintaining the illusion of a rule of law requires an occasional obvious departure from a knee-jerk right-wing agenda. Such a deviation allows court apologists to pretend that it's not just all about raw politics. The most likely place for that gambit to emerge are the current cases impacting voting rights -- the census and gerrymandering appeals. My guess is that Roberts will throw liberals a bone in one of those cases, but not both. In terms of historical legacy the gerrymandering case probably has more sex appeal for Roberts because of its clear constitutional dimension.
67
What Ms. Greenhouse has made painstakingly clear is just how politicized the SCOTUS has become. The plaintiffs on the political right know it too -- they have legislation passed or cases created specifically for this court to consider that further their anti-environmental, anti-abortion, anti-voting rights, pro-gerrymandering, pro-religion, pro-business, anti-union agenda. The impartiality of the SCOTUS is no longer an issue for the GOP -- and the same is happening at the Appeals court level with the appointment of so many "federalist" devotees. Mitch McConnell's legacy writ large.
491
@mjan
True!
The Court saving itself and the Court saving the Republican party from the consequences of that party being out of step with voters and how that effects the 2020 election, are not the same things.
The first is barely acceptable, the second is a harbinger of the end of the experiment that is America.
55
@mjan
To pretend that the Court was ever apolitical is a mistake. It certainly seems more political because the process of nominating and approving justices has become more baldly political. That has produced an ethos of "making hay while the sun is shining," leading both parties to work to install ever-more political justices on the Court when they have the opportunity. The polarization of the Court is a result of--and now a contributor to--the politicization of the process. I see no way out of this cycle without individual justices becoming more moderate when faced with the grave responsibility of creating lasting precedents (Kennedy at times). I am not optimistic given the current members.
18
The impartiality of the SCOTUS has never been an issue for the Democrats. They have the votes of the 4 liberals locked-in and a sure bet.
6
This seems like sub-par judgin'. Are the newcomers failing to pull their weight?
2
The big scare is that the court majority is doing this only in order to protect the Republican party from a public backlash caused by the draconian and brutal nature of what the Republican party itself is aiming for. You know--all of that extraordinarily yucky gunk like compelling incest and rape victims to carry the rapist's fetus to term. As noted here, once the 2020 elections are over, there will no longer be anything constraining the majority to: decency, the Constitution, separation of church and state, the notion that the president is not a king, etc.
Haven't we all had enough of all of these outraged evangelical cake makers and flower arrangers who want nothing more than to foist their intolerant retrograde religion on the rest of us, along with their financial backers and supporters who are clearly aiming to make our democracy into a theocracy as part of their mission to preserve, until the end of time, unearned and unmerited white conservative entitlements and prerogatives? I'm glad our own state attorney general (Washington) is on top of this. He's a smart cookie.
10
The US Supreme court cannot be trusted any longer as the whole court has been politicized in the most heinous way, and has been pushed to the far right. On top of that it is an illegitimate court as Merrick Garland never got a hearing. McConnell sabotaged our nation. There is nothing they can say or do now that will bring any respect from me as to their interpretations of law. They have been compromised, meaning our country has been compromised. Their word may be law but i will always know that politic's are at play. It is so disgustingly sad. Yeah, i like beer.
14
How to keep out of trouble? Please don’t be trite and simple-minded. The Supreme Court is simply doing its job!
2
"It seems to me..."
"If I'm right..."
Not just opinion, but rank speculation...
Once again, Linda is trying to influence an outcome that she does not agree with...
4
When the Democrats gain control of the house and senate, there will be a lot of work impeach ing judges!
4
Justice Roberts said this week that the gay marriage statue should’ve revisited. Does he feel the same about the Loving decision? He is married to a white woman after all
1
Bakers can't be choosers.
8
I do yard work. "No, I can't do your yard, because I see you might be gay and also have blond hair, and my personal religion is against blond hair and gays". " Yard work is sacred to us. So no, I will not mow your lawn". Gosh. This is a no-brainer.
5
Where have you gone, Marie Antionette? The nation turns its lonely eyes to you.
3
o-one had mentioned in these comments is: behind the scenes, w/ R Senate consent, Trump has been quiety packing state appellate court judges w/Conservatives.
I've never understood how Evangelical churches use their "1st Amendment" rights to blatantly endorse candidates, tell their members how to vote, while no other major religion in this country (mainstream Protestants Jews, Muslims, etc.) aren't granted such political power. A clear separation of Church & State; yet R's have been using it since the 1970s (see Moral Majority, anti-abortion groups, etc.)
In 2016 Trump addressed a major Evangelical convention & gave them strategy. Evangelicals aren't even a majority religion!
When Kavanaugh was confirmed, I emailed my brother (a lawyer), that "This = the death-knell for Roe v. Wade." He replied that K still respected the law.
None of his rulings reflect that. He refused to recuse himself from cases he clearly should have, after his paranoid rant/threats re Hilary/Dems.
Bro added that "Justice Roberts may lean Conservative, but is aware of the legacy of this Court in history." True, he did incur the wrath of Agent Orange by upholding Obamacare. Will the Supremes overturn Roe v. Wade? More likely, they'll kick it to the states, which are every day chipping away at abortion rights.
2
Conservatives want to go back to 1950 when brown folks,gays and women knew their place and stayed in it. Conservatives think corporations are people although you cannot execute a corporation as they believe in the death penalty. Conservatives believe money is speech and lots of money screams my way or the highway. Conservatives believe that their religion should inform our federal laws. There should not be an Obama judge or a TRump judge and the supreme court needs to reflect the changing times and demographics of our country as they are today.
2
No one has mentioned that behind the scenes, Trump (w/ R Senate approval) has been quietly packing state appellate courts w/ Conservative judges.
When Kavanaugh was confirmed, I emailed my lawyer brother, "This is the death knell for Roe v. Wade." He answered the K. still respected the law. None of his rulings show that. Given his paranoid rant about Dem/Hilary/conspiracy, he should have--but didn't--recuse himself from several cases.
Bro also said that tho Roberts leans Conservative, he has a sense of the Court's place in history. This I do believe, since he incurred the wrath of Agent Orange by voting to uphold Obamacare.
However, it's clear that the states will chip away at access to women's healthcare. When phrased like this (instead of "pro-abortion") states will put women's health at risk by denying pelvic exams, screening for deadly (but preventable) ovarian cancer, pre-natal treatment. Regardless of income, American woman suffer complications and death from pregnancy at higher rates than any other developed Western country.
I don't understand why Evangelicals operate tax-free but allowed political lobbying. (They aren't even a majority--see Mainstream Protestants. Why can't they, Jews or Muslims have this kind of power?)
In 2016 Trump addressed a major E convention to advise them on election strategy, and nobody said, "Boo." Separation of Church & State should ban such things.
Linda Greenhouse is your best, most insightful columnist, who, with a left of center disposition, nevertheless, unlike the liberal (and only wing) of the Times's coterie of choral practitioners, does not stray far from progressive center of gravity that once was characteristic of its journalism. My suggestion would be to broaden the reach of her journalism, beyond the Supreme Court.
3
How does this account for the holding today that a cross is time honored secular symbol that belongs on public property?
2
RBG already let the cat out of the bag on the census case, and Ms. Greenhouse isn't going to like the result.
I think they will advance Republican interests, but not all at once. They want to rock democracy’s boat, not sink it.
I do hope that Trump's replacement considers the author for the Supreme Court's next opening. She would already be up to speed and writes in such a convincing, judicial manner. And from inside the court she might be able to reveal even more about what is going on. Now, if I might ask a personal question of Ms. Greenhouse: How long did your parents live?
2
A census is about the future.
The reason the government conducts a census is to understand how large the population is and where it lives, so that resources can be allocated appropriately — in the future, after the results of the census are known.
A census is conducted only every ten years.
During those ten years, person who are legally residing in the US, but who intend, within the next ten years, to become US citizens, will need fair representation of their needs of government resources. If a person becomes a US citizen one day after the census, and if the census is distorted by lacking the fact of their presence in the country on the day of the census, they will spend 9 years and 364 days without fair representation. This would be unconstitutional.
The issue is not about citizenship per se; but rather about the arrow of time, the frequency with which the census is done, and why a census is done at all.
4
No mention of the double jeopardy case, where 7 out of 9 justices decided it’s OK to stand for the same crime in both state and federal court? This is not a liberal or conservative thing, or a republican or Democrat thing. The SC can’t even read the plain text of the constitution. We’re all in trouble.
1
There is much to concern us in today's Supreme Court. One instance that bothers me greatly is the recent case where the Supreme Court ruled that it is Constitutional to display a 40-foot cross on federal land. This court won't feel the necessity to free themselves from Republican constraints. They agree with today's radical Republican Party. They are completely politically biased and seem to think the Constitution is just a piece of paper. I doubt that conservative Supreme Courts of the past would have ruled in favor of such a strong attack on our separation of church and state Constitutional provisions.
7
There's little doubt Chief Justice Roberts is the reason for the fortuitous calendar. He's the reluctant swing vote solely for fear of the court looking every bit as political as the Republican McConnell-led Senate and not nearly as blind to the impact of their decisions as depicted by James Earle Fraser's blindfolded statue adorning the court. Is the court political? Of course. But even Justice Roberts understands what will happen to this country if the conservative majority vote their conscience and not their well-educated minds.
2
Lets just admit the truth...the Supreme court has been totally politicized by both parties and today is nothing more than an extension of the political parties. They view the "law" through their biased political prisms and that's a fact.
It's time to end life time appointments.
4
@MN: It sounds very even-handed to condemn both parties here, but so far there is only evidence relating to the Republicans.
When you look at how democracies die, it's not necessarily by revolution or military takeover; it's often via steady corruption of institutions, esp the courts, which become a tool of the anti-democrats, with judges hiding behind sophistry and robes, preserving the appearance but not the substance of democracy. Think Sandra Day O'Connor admitting she voted for Bush in 2000 because she was ready to retire but wanted to be sure there was a Republican in office. And of course who can ever forget the the stolen seat for Gorsuch and the travesty that was the Kavanaugh hearings.
10
Why does anyone think that anyone on the supreme court is even thinking of protecting themselves? They are above the law! Each member of the court does whatever they want. I purposely avoid refering to them as justices. Justice has nothing to do with what they do.
3
There seems to be a contradiction in your reasoning
Ms. Greenhouse.
You want expanded rights for the LGBTQ community
but at the same time you wants parents to be free to
abort a babe if she has the wrong gender, as such they
would, by such reasoning, be able to abort a child if
a test indicates that they will be Gay.
A fine of $ 135,000 is cruel and unusual punishment because
a baker chooses to follow their religious beliefs in not making
a wedding cake. It was not as if a doctor refused to perform an
emergency operation. [ From what I understand the bakery had
to be closed as the owners were bankrupted. ] The Court in
Washington State seems just as close minded and, oddly
enough intolerant of those they deemed tolerant.
Why not just allow market forces to resolve the issue:
No one is forced to buy at a bakery that offends your
moral sensibilities and no bakers are forced to create a
cake for a ceremony they do not believe in.
5
And by your reasoning Mr Brown no one should be required to serve African Americans, mixed race couples or individuals of a religion not acceptable to the business owners. After all religious freedom arguments have arisen in all my examples especially the mixed race couples. Bigotry is bigotry and the justification of oppression under a religious belief argument should hold no weight in a secular society. The market is no more a place for discrimination against one group of people because of sexual orientation than race, gender or religious beliefs. I may not like Christian conservatives but that doesn’t justify discriminating against them in the public square. If you don’t want to sell cakes to everyone then sell them to no one.
18
I don’t know if this is the case here, but if your “company” is protected by the state, you are there for the public good, nor your beliefs.
Surprising that there is no mention of the gerrymandering in North Carolina and other states, that will dramatically influence the 2020 election and soon-to-follow redistricting.
7
This court is totally political. The recent decision on the Virginia gerrymandering case, even the limited, will be used by the court to justify allowing NC to gerrymander at will, opening the gate for Wisconsin and Michigan to do the same.
2
If, as I agree is likely, the Supreme Court is concerned with protecting the Republican Party, the census case differs from those cited. Those can wait, but sabotaging the census now is crucial to Republican efforts to retain power beyond 2020.
6
Of course SCOTUS should pass on the census question, since there is evidence needing investigation that two witnesses for the government may have perjured themselves.
7
I am surprised that a legal scholar such as Ms. Greenhouse would write:
... the official in charge of enforcing that law imposed a $135,000 fine to be paid to the couple as “compensatory damages for emotional, mental and physical suffering.”
A fine is penal (a punishment on behalf of The People). Compensatory damages are remedial. They are not the same thing.
The couple was not fined nor was a penalty levied against them, no matter how much it felt like it or hurt financially (which it didn't, because others put up the money for them) and no matter how much the religious right wants to characterize it as "persecution."
The bakers caused harm that was quantified into a damage amount (to two different people), and the baker's owe those damages to the people they harmed, it's as simple as that.
It was not a fine.
5
"But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party."
So the court is not interested in its own legitimacy, reputation or preservation, it is interested in propping up the Republican Party.
150
@Peggy Bussell: Ever since they blocked Florida from recounting its votes, and installed GW Bush as president, disregarding all the conservative judicial theory they usually claim to believe in, the Republicans on the court have acted as loyal Republicans in all cases where political power was at stake. (some of the justices are new, but they have been selected to be loyal Republican partisans, so we can expect more of the same from them, indefinitely.) It's probably more accurate not to talk about the Supreme Court having become a partisan political body, but only the Republican majority. We have no way of knowing if the Democrats would be as cynical, if they were in the majority.
17
@Barooby
Since the Court recently ruled it is Constitutional to display a 40-foot cross on federal land, I do not believe that they are insulated from Republican ideology. There are a lot of excuses one can give for that decision, but none hold water. Our separation of church and state protection has been seriously eroded.
14
Yep!
2
So....nothing more than politicians in robes. Huh....who would have imagined that to be the case. Trump was right in speaking of his judges.
3
If the census case doesn't finally convince us that these are not Supreme Court Justices but rather low-rent Republican operatives, nothing will. What a great pleasure if Pelosi and Schumer would finally realize that, in our government, President's aren't the only ones who can be impeached.
13
After reading this article my spirits have picked up! If we didn't have you, Linda Greenhouse, to offer very well-written, accessible articles about this alarming Court, I for one would be miserable. Thank you for your much-needed work! Next, how do we get Merrick Garland on the Court?
5
This is how elected autocrats subvert democracy—packing and “weaponizing” the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics.
Oxymoron: elected autocrat?
6
Let's hope so. But I am still and evermore baffled as to why, out of all the possible discrimination, a gay couple would want to force a baker to make a cake except, of course, to prove a point. But if they win, as they should, I hope they have the good sense not to eat it.
3
I see the Supreme Court's decision to remand the case back to the Oregon Court of Appeals, not as self-preservation, but as proof that they have become supremely political.
This recent action shows them to be choosing cases, based on political risk/popularity of each case. Already they have done this at least three times. That is not what the Supreme Court was intended to do. Instead, they are abrogating their responsibility.
Is the Supreme Court now politicized?
I'm afraid so!
7
"Self-Preservation"?
It looks more like preserving Republican majorities, when the Republican position, which the right-wing majority on the court would love to affirm, is widely despised -- except in their own Chambers.
6
Deciding the census case in favor of the administration will leave little doubt--if there happened to be any doubt to begin with--that the majority on the Court--Roberts, Thomas, Alito, Gorusuch, and Kavanaugh--are Republican politicians in judicial robes, and Wilbur Ross as well as others lied about the rationale for including the question.
When younger, I always held the justices on the Court in highest esteem, regardless of who appointed them. The reason for the esteem could be attributed to the belief that there was a reverence for our Constitution that surpassed any loyalty to a political party or politician. But it is now apparent to me that political party trumps loyalty to the Constitution in our national experiment with democracy.
Politicians like Mitch McConnell and the other Trump apparatchiks in Congress have left me with little doubt about the current place of our Constitution in our national life--political party trumps all other loyalties, unfortunately, and we do not need adversaries outside the nation, such as Iran or North Korea, to imperil us.
9
The Supreme Court has had its share of disasters over its history, from Plessy v Ferguson to Gore v Bush, but has managed to maintain its credibility. As the weakest of the three branches in terms of actual power to do something, the Court is well aware of the need for public credibility. Yes, the Court is indeed political with Justices chosen in an increasingly politically divided manner, but as good politicians the Justices recognize the general need for prudence which usually stops too great and excess in any direction.
2
Perhaps the Roberts Five are starting to worry about the meaning of the Good Behavior Clause.
4
What baker who presumes this "complicity" nonsense will presume complicity in the success of the marriage after the wedding? Do they think their cake will strengthen a couple's love? Do they think their cake is a guarantee of character and fidelity? Or are they just nasty bigots being urged on by right-wing money and legal counsel seeking to undermine equality?
10
They've painted themselves into a corner. By pushing many of these cases onto the October 2019 docket, they will have to rule on these hot potatoes in spring 2020, at the height of the primaries. But it doesn't really matter; we're about to be whip-snapped back into the Lochner Era. The civil rights gains that have occurred over the past seventy years are about to unravel. But, there is one ace up the sleeves of progressives: the states!
5
I worked for the Census in 2000. If I were going to work on it again in 2020, I would write NA for Not Applicable over the citizenship question and not ask it to anyone.
7
Very in-depth analysis by Ms. Greenhouse. Obviously, the SC judges are very smart not to look partisan when they want, and are subtly trying not to influence the 2020 elections. Or rather not influence the elections in case their cause gets hurt.
1
It will be hard, if not impossible, for the Court to recover from the widespread public perception questioning its illegitimacy. No matter what they do, the fact that Garland is not sitting on the court calls into question every decision that is issued.
31
While I agree there was nothing but political reasons not to allow the appointment, I cannot blame that on the justices. I think that “consent” shouldn’t need to be a positive, but implied, and non-consent be the vote. Both allow for senatorial review, it just changes the default to approve rather than object.
2
Seems to me that if SCOTUS, or any Federal Court, issues any ruling in the case of Congress' oversight powers regarding Trump's tax returns, then the courts would be violating the separations of powers.
Why? If the Judicial branch has the authority to decide when Congress can and can't exercise oversight over the Executive, then Congress is subservient to the Judiciary and not an independent branch of gov.
In short, we're in the middle of a Constitutional crisis in which our democratic republic is in extreme danger of being replaced by an Autocrat backed up by a rubber stamp judiciary.
13
The Supreme Court and our country wide judicial system has become another highly hyper political branch like the other two branches of our government. Trouble is that these individuals are appointed to life terms as apposed to at least a review of their actions every four or two years as is the case for Congress and the President.
95
@Kipper...
Sorry...A branch that relies on the nomination of judges by a politically elected president and a politically structured Senate is always going to be a POLITICAL institution.
Indeed, it was designed to be thus, although the founding fathers were wise enough to assure that the political thinking of the court would change very slowly as a result of the life tenure of those confirmed to judicial positions.
The thinking was clearly to keep the Courts and the law firmly rooted in political and social histories of the times that the justices were appointed. This assures that the law remains both consistent and stable over time while providing for the evolution of political thinking and the acceptance of those evolutions as worthy of being enshrined in law.
I'm not sure no one in our nation would like to have a "democratic" Supreme Court as the likelihood of the political excesses of the French Revolution would surely follow
2
Kipper provides a good argument for increasing the size of SCOTUS after 2020.
17
@The Owl: The real question is how blatantly these jurists will bend language to neutralize explicit constitutional instructions like "Congress shall make no law respecting an establishment of religion" but it can mandate involuntary participation in religion.
They already have no credibility with me.
18
The statement that after the election the justices will feel "free from whatever constraint they feel to take a step likely to incite public backlash against the Republican party" certainly seems to affirm that if we do not, in fact, have "Trump justices" and "Obama justices," we do have Republican and Democratic ones. That, in turn, puts the lie to the notion of an impartial SCOTUS (a notion many of us find questionable anyway).
It has been true during my life that SCOTUS justices have sometimes been appointed by a POTUS of one party then ended up disappointing that party. Some have seemed to move left or right in unexpected ways. However, recent appointees seem to be more thoroughly vetted for political (conservative vs liberal in the language actually used) purity. No danger at all that Kavanaugh or Gorsuch will sashay to the left and be major disappointments.
66
@Anne-Marie Hislop I agree with your proposition that it is unlikely that a judge appointed by a Republican from a list compiled by the Federalist Society will turn out to be another Earl Warren, Harry Blackmun, John Paul Stevens, or David Souter, but at least with Gorsuch, he has taken more than one walk on the wild side when a case was framed in libertarian terms just as Roberts has been peeled off when a case has implications SCOTUS qua institution.
6
@Anne-Marie Hislop
Leonard Leo (who has never held an elected office) of the oligarchic funded Federalist Society vets and picks the US Supreme Court Justices as well as all Federal nominees for the bench. Any deviants from right wing orthodoxy are eliminated from consideration.
The nominees are then sent to Mitch McConnell for Senate approval.
In the "old days" the more bipartisan ABA would rate candidates as "qualified, highly qualified, or unqualified" for nomination to a Federal judgeship.
As all the oligarchs know, "you get what you pay for."
15
People are appalled that the Court is partisan. People ask too much. The composition of the Court is a partisan issue in every national election. The Justices are nominated and confirmed (or ignored) in the most partisan of processes. The idea that all of this should produce an impartial panel of Constitutional arbiters is a comfortable delusion that makes a farce of the confirmation process (in which judges baldfacedly lie about being "umpires"). The only genuine and heartfelt statement under oath by a judge, ever, in the history of the confirmation process was by soon-to-be Justice Kavanaugh, who baldly proclaimed his fealty to Donald J. Trump and just as shamelessly proclaimed that as a Justice he would seek vengeance upon his political opposition from the bench ("what goes around, comes around"). America was shocked, shocked, except for Republican partisans who are delighted. The entire system of American justice has been poisoned by our hatred of one another, and it is only going to get worse.
212
@ Archer
True enough. Republican voters have long understood the importance of having SCOTUS justices sympathetic to their causes. Hence, McConnell’s refusal to consider the Garland nomination knowing that a Supreme Court opening would give evangelicals incentive to vote in 2016 regardless of the Republican nominee. Democrat leaning voters are latecomers to this game.
19
@Archer: But, in the past, justices were appointed by the president in office, and were generally approved by bipartisan vote. The case of the ultra-conservative Bork not getting approved was notable just because it was unusual: the convention was to appoint moderate candidates, leaning somewhat right or left, and to approve them. Nominating the right-wing Bork was a challenge to the convention. Now Republicans have entered new territory, in refusing to even consider the moderately liberal Garland, who would have been guaranteed approval by the old convention, and in proceeding to appoint far right, partisan justices, rather than making any show of moderation or bipartisanship.
16
All I can say is that lifetime appointments are for monarchies and autocracies.
2
I have yet to see a mainstream reporter explain the strongest version of the Department of Commerce position. In fact it is how Hofeller opened his analysis, basically: in order to know whether or not voting rights of protected classes are being violated, accurate statistics of Citizen Voting Age Popualtion (CVAP) are needed down to the block level. "Blocks" are the smallest unit for which the Census reports statistics, and since voting district maps do not necessarily follow other boundaries, statistics from the smallest units are necessary to overlay on actual voting districts. The Census does calculate CVAP for "blocks" based on 5-year accumulations of data from the American Community Survey, but those have a high degree of uncertainty. So wouldn't it be great to have complete block data to calculate CVAP?
Then Hofeller reveals the true purpose by devoting the remaining 90+% of the analysis to how great it would be to have that data to more precisely gerrymander voting districts; how the collateral damage from asking the question would be increased representation for whites and Republicans; and how this is a step toward the dream goal of having representation and budget allocations based on numbers of citizens instead of persons.
Bringing up VRA gives the USOC an argument to approve the question - but only if they ignore all of the "collateral" effects, which are in fact the real agenda. I hope Ms. Greenhouse is right, but I fear the willful blindness of the USOC.
2
What Greenhouse is calling an "instinct for self preservation" seems to me just another form of the kind of stonewalling we've come to expect from Republicans.
Just as Mitch McConnell will attempt to postpone action on guns, healthcare, immigration and other pressing issues, just as Trump will try to avoid further disclosures of his personal finances and his role in encouraging Russia's interference in the election, the Republican stooges on the Supreme Court will try to avoid overturning Roe or rescinding LGBT rights until after the election.
And somehow, the justices believe that this will prevent the perception that the Supreme Court has become a blatantly political instrument dedicated to serving the GOP agenda? Really?
7
"But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.)"
Surely Ms Greenhouse is not suggesting, or even implying, that SCOTUS has devolved into just another partisan political entity?
It's bad enough SCOTUS (and any federal bench) is a lifetime appointment...
3
As always, this is a solid piece of analysis.
Maybe someday the Supreme Court, instead of showing an instinct for self-preservation, will surprise us all with a new and proper instinct for justice.
7
We (the USA) do not have courts of justice, but instead courts of law. While verdicts have been set aside “in the interest of justice” it has been done mostly by DA’s and not judges.
Does the Gorsuch dissent in the Gundy case today suggest that when it comes to Trump's obstruction of the House's oversight of him, Gorsuch would favor the Article I authority of the Congress? Or is that authority superior only when Congress is actually "legislating"?
If, as this analysis contends, the Supreme Court will play it safe until the 2020 election to avoid provoking a “backlash against the Republican Party,” then so much for the pretence that the SCOTUS is above politics. Sad.
6
Does Justice Roberts still believe the court just calls balls and strikes? Deep down, I do believe Roberts believes this, and yet, finds himself in a middle of a set of Justices or have no problem with moving the strike zone around to fit their ideological agenda.
3
@Amanda Jones
Roberts is a blind umpire. But he knows when a conservative is pitching and a liberal is batting, it's strike.
I think they all want to believe this, but CJ Roberts is realizing more than most that it is not the case.
"Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party"
This is a well-reasoned, fully justified, and utterly damning indictment of the illegitimacy of the Roberts Court.
6
I think somebody forgot to tell Thomas..
2
We are heading into another crisis
1) Before the Civil War, the Court upheld the Fugitive Slave Law (Prigg vs. Pennsylvania) and then went on to say African Americans "Had no right a white man need observe" (Sanford vs Scott) . The end of this era began in April 1861 at Fort Sumter and the era ended when Abraham Lincoln appoint Salmon P Chase to replace Roger Tawney.
2) The Lochner Era, when the Court ruled that laws prohibiting child labor violated the "liberty of contract" This ended when FDR threatened to expand the Court. His proposal failed, but the Court reversed its rulings on the New Deal. As Mr. Dooley noted, "The judges follow elections, too"
3) Ms. Greenhouse has repeatedly noted that the Court and the judiciary are loaded ("packed") with jurists out of touch with what a majority of Ameicans feel the Constitution demands--i.e., freedom and liberty for all, not just freedom for belivers in certain theologies. 70 Senators, mostly red state Senators, represent less than 35% of Americans.
In this oped, Ms. Greenhouse reaffirmed that the Court still follows election returns. But it's going to get worse
9
“Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.”Without a DIG, the SCOTUS will have invited Democrats to trim the membership by impeaching Thomas and Kavanaugh and invalidating Gorsuch as a flagrantly unconstitutional abuse by Republicans who denied Obama’s full term of office. Or Democrats may take on the attitude of Republicans and claw back Republican laws policies and appointments and investigate every shred of Trump’s Party.
The cake, flower discrimination on “religious beliefs” is patently corrupt, elevating a religion above the common good. It is starkly evident if one’s religious preferences are favored above the laws that prohibit discrimination on the basis of sexual orientation can be applied to housing, loans, transportation, and protections from violence. Some religions practice stoning, castration, and torture for those not heterosexual. Justices would be wise to walk back their Cake decision.
4
I don't know which is more depressing, the idea that the Republican justices will put off a decision on the new abortion restrictions (aka bans) so as not to motivate more Democrats to go the polls in 2020, or the certainty that John Roberts is the only Republican justice who might care enough about preserving the last shreds of the court's legitimacy to dismiss the administration's census case appeal in light of the damning Hofeller memos. While either outcome would in the short run be preferable to the alternatives we've come to expect from this Court, they would clearly just be temporary reprieves from the march toward unapologetic partisan bias.
4
Excellent insights Linda. We'll know soon enough whether the court's instincts for self-preservation extend to the Republican Party. ;-)
2
I find it fascinating but not surprising that conservatives find someway to get around the constitution with their American Taliban decisions on fairness.
To me it's simple. If you are a business operating in the public domain you're required to offer your services to anyone that shows up to purchase.
Imagine a restaurant refusing service to a gay couple. A gay couple being refused a room at a motel. A grocery store refusing service to a gay person.
But somehow bakers and flower arrangers have a legitimate issue with their religious beliefs to refuse service. Amazing.
13
@DP: Imagine if those businesses had signs saying "whites only". Same thing, really.
1
This Supreme Court is illegitimate as long as Injustice Gorsuch, a recipient of a stolen seat, and Kavanaugh, who lied to Congress, sit on the court.
#VoteAgainstAllRepublicans
14
I'm not optimistic that SCOTUS will D.I.G. the Census-case appeal as in "dismiss as improvidently granted," and inclined to expect the 5 'on-the-right' (but almost always 'in-the-wrong') to 'take' it, give it favor ... and DIG another hole in our democracy deeper than any they've ever been in.
2
Roberts is gunning for Roe, Griswold, and Brown. It is only a matter of time until the SCOTUS has returned the United States to the Trumpian "Great" era of Jim Crow where women are permanently in the kitchen, barefoot, and pregnant.
3
Re the bakers who say baking a wedding cake for lesbians is "complicity in sin." Really? Well GLBT people pay taxes too - taxes that pay for the infrastructure used in the bakers' business - water supply, electricity, roads used to transport goods...if you're that pure, why are you using infrastructure partially paid for with GLBT dollars? Isn't that being "complicit in sin" too? Close your business or one of the Horsemen in Revelations will come for you!
6
Well! It sure looks like they're pandering for the Christian votes today.
6
great piece
What depressing insight from NYT’s resident SCOTUS whisperer...
With the exception of Justice Thomas, who has always let it all hang out ideologically, the Republican-appointed justices know when to modulate their participation in watershed cases. This doesn’t sound like “justice” to me. And it doesn’t bode well for abortion, the administrative state, the environment, or voting rights in the years after 2020...
4
The republican judges are all product of the ultra right wing Federalist Society(or more appropriately the Federalist Anti-society) which explains everything that has been going on for the past 50 years. It's been a slow motion coup which resulted in trump as president, corrupt Mitch McConnell the killer of laws and a corrupt republican party.
12
I have a dream. That a President who loves the whole country and its Constitution will nominate two worthy citizens to the Supreme Court. Then a similarly inspired Senate will confirm Merrick Garland and a woman journalist from a leading newspaper. There is nothing that says the nominee has to be a lawyer or have served as a judge, right? To quote an unusual source, that will be a great day for America!
2
Elephant still in room — no justiceability for partisan gerrymander claims. Republicans loath voting rights.
3
What about FREEDOM OF RELIGION? Do Religious People have NO RIGHTS?
The Gay Couple could have just bought a cake from this shop and if the shop refused to sell them a cake; I would then support the gay Couple.
But, to shove your beliefs and practices down some one's throat who sincerely and by his faith opposes those beliefs and practices; how is that fair or just.
How would the Gays feel if we the rest of the people shoved down our beliefs and practics, as we used to in the past, down their throats, AGAIN?
Would that be fair and Just. I think NOT. How would they like it?
1
@Sood What about other private owners? Should private owners of restaurants, bars, hotels, limousines, resorts, yachts and planes also be exempted? And, is there in your view — any private business that should NOT be exempted on religious grounds from offering their services if they deem them as supporting gay marriages?
Taliban, Christian Taliban. Two sides of the same coin. Both arbitrarily decide to enforce morality devoid of Godliness and grace.
4
@Deevendra Sood They are free to close their business. They are free to practice their religion. The US Constitution guarantees freedom FROM religion, and quite bluntly, it's not GLBT people running around trying to force people to a) not allowed to be married, b) not be allowed to obtain birth control or medical procedures, including procedures to save their lives.
What if stores were allowed to refuse service to people from India? Would that be allirght with you?
A DIG is just proof that the 3rd branch is just as corrupt as the other two.
2
The question may be which course the conservative majority sees as better for them in the long run. Punting on the citizenship question may help them short term by preventing a backlash against Republicans in 2020. On the other hand, allowing the citizenship question on the census resulting in an undercount to the advantage of Republicans may give them a longer-term advantage in the future as more Republicans are likely to be elected or stay in power. In either case, it would seem that partisanship and not the law or Constitution is driving their decision-making. Not exactly inspiring confidence in the independence of the Supreme Court.
2
Honestly, as a middle-aged gay man who, just as he was reaching the age of 40, fell in love with and married his husband after having lived a life as an outsider in this country, each time I read about the machinations at the Court I wonder what new assault on my liberties are coming under renewed attack. I doubt that I will ever be free, in my lifetime, of the threat to have my unalienable rights to "life, liberty and the pursuit of happiness" if not taken away then at least constantly under attack by the EVIL forces that permeate throughout vast swaths of this so-called "United" States. Thank heaven I live in New York where as many extra protections as a State can afford it's citizens ARE afforded to me and my husband. How sad that Americans living in backward "yokel" parts of this land do not share equal protections as HUMAN BEINGS of those places. When friends and family conclude that I've gained all the protections I'm entitled to as a gay American I'd remind them that it is most definitely NOT the case and my sole reason for subjecting myself to the daily barrage of filth spewing forth from Washington these days is to see if I've lived another day with my tenuous rights intact OR has a new assault been launched upon them that require my action, such as it is, to gear up for yet another fight. Were it not for the committed love of my spouse I'd have surrendered long ago because it IS tiring BUT anything worth having IS worth fighting for and I will NEVER surrender.
6
For this reason, and many others, it's time for the electoral college to hit the dustbin of history. The only reason if continues to exist is that it provides the Republican party its only chance of putting their candidate into the White House.
6
Let’s see, Justice Roberts wrote the majority opinion in Shelby County.
Shelby County has brought a new era of Jim Crow voting restrictions (enacted with “surgical precision” in my residence state of NC) to the very precincts that it freed from the preclearance provisions of the Voting Rights Act.
By reversing Judge Furman’s opinion, the Roberts majority can effectively cause millions of folks present in the country illegally to be undercounted, often in precincts which perhaps Democrats would be aided by an accurate count.
Ergo a 5/4 decision for Trumpo.
2
More and more the court behaves like a political body. The Justices --especially the Republicans on the court --barely attempt to conceal their partisan allegiances. Precedent is bent out of shape or rudely discarded to achieve the outcomes desired by the majority. Small wonder that the Justices make strategic choices about which cases to hear and when. Once the 2020 election is in the rear view mirror, you can safely bet that the conservative majority on the court will show no such restraint. Rolling back the clock on rights will be the order of the day.
3
Anyone who declares that their religion prevents them from providing a service they provide to the public at large should be required to present legally admissible evidence of their religion's proscription for providing the same service to people whose behavior they disapprove of.
1
Five people who think they have an invisible friend, will decide these cases.
3
Great analysis of that murky institution known as the Supreme Court.
1
While wary of the potential injection of toxic politics the court, this article confirms further what I had hoped from Justice Roberts. Upon his appointment, a friend asked what I thought as I disagree with his political leanings, specifically abortion. My answer then was that his personal background - where his belief in anti-abortion came from personal experience with his wife and their desire to build a family - is never the yardstick by which I could judge the potential greatness of Justice. Serving interests of a job to further political or legal goals - being good at ones job doesn’t indicate an impaired sense of judicial restraint. Rather, it’s ones guiding principle of the Courts role. With a desire to preserve the greatness of the Court, it may well make him a great Chief Justice.
As it stands, that desire has led to understanding of how controversial issues at this time threaten the legitimacy of the Court and the government as a whole. Further, the court is not of one - every Justice is in agreement. Despite the questionable legitimacy of their appointment - this includes Gorsich and Cavanaugh.
A decision to not decide now is the most powerful opinion. The Court is deciding save the political discourse from itself.
Much like Mueller, good and honorable people who believe in preserving the Union, as opposed to political gamesmanship, are what makes America great.
I am a proud liberal and a prouder American today. Thank you, Justices, for your great service.
1
What jumps out at me in yet another excellent piece from Prof. Greenhouse is her parenthetical admission that this Supreme Court in particular is as political as the other branches of government:
"(But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.)"
It truly has come to this. Sad. Thanks Republicans, you truly have destroyed our democracy.
4
The Justices may not wish to be seen as partisan but they still are. The fault is not so much in them as in the Senate and with the Presidential appointments. By picking and approving partisan nominees we are assured of having partisan Justices.
3
In the Washington Supreme Court case referred to by Ms. Greenhouse, the Washington Justices focused on a very narrow issue that the US Supreme Court directed the Washington Justices to decide before the US Supreme Court took up the appeal of the Washington cake maker: whether anyone involved in deciding against the Washington bakers demonstrated undue bias toward the bakers whose decision not to sell to the gay couple was challenged. The Washington Supreme Court decision--exhaustive, clear, and written in to deter attack on Washington's statutes and judicial decisions--hardly touched on the whether religious beliefs could supersede enforcement of those laws which prohibits discrimination against LGBTs who wish to marry and who wish to engage services offered by public accommodations licensed by the State of Washington. The US Supreme Court direction to the Washington Court was direct: did anyone involved in the decision-making at the State level show unreasonable bias against the bakers who expressed a firm and fast religious belief, not whether Washington's Law Against Discrimination, which the bakers' decision was unconstitutional.
After reading that decision by the Washington Supreme Court, I briefly considered whether the Court was seeking a way to redirect the issue away from deciding the Constitutionality of State Laws against Discrimination and more toward overt bias against religion. To me, at least, these are distinct issues.
2
@Swimcduck: Every claim to know what God thinks is only a projection of the claimant. There is no rational basis for ascribing truth to these claims.
2
Been reading you for years. When I do I find myself saying, "you're a spectacular resource, lady." Time I shared my view with you. Thanks.
3
The Court has known how to save itself almost from the beginning. John Marshall knew that if he found for William Marbury, whose appointment to a federal commission by outgoing president John Adams was being withheld by incoming president Thomas Jefferson, he risked the authority of the court simply being defied by Jefferson. In a Solomonic decision, Marshall found the denial of Marbury's commission was indeed illegal, but went on to find that the part of the law granting SCOTUS the power to issue relief to Marbury was unconstitutional, thus affirming the Court's right of judicial review of acts of Congress, which Jefferson opposed, while at the same time handing Jefferson a victory it would have been awkward for him to repudiate.
1
Could it possibly be the case that SCOTOS decided that there are too many more important issues to be resolved than whether cakes can be baked or not?
1
This "self-preservation" by avoiding cases and kicking them down the road a bit until after the 2020 election feels very much like ignoring Merrick Garland. For a supposedly apolitical entity, the cases are being chosen and decided on in a very political way.
If the Supreme Court were truly independent, they'd have the courage to make a decision when the opportunity presented itself. What is just is just regardless of the date on the political calendar.
Of course a whole bunch of cases are getting decided in obtuse, opaque, and technical ways that slowly strangle the Constitution without really triggering outrage against a populace that in the majority really does believe all people are created equal.
3
Seems as though, with the conservatives in the majority, we are a nation of men, not laws.
2
With all their back room deals and hemming and hawing the Justices prove once again that there is no absolute interpretation of the constitution as conservative justices pretend. There is only what is best for our society and individuals within the frame work of the law and constitution as interpreted by imperfect justices. It is why a constitutional guarantee of women's rights as presented in the ERA amendment which has hung around for decades needs to be passed. At one time presidents rulings thought established law like Roe v. Wade are now at risk.
The Court loses a lot of its power as an arbiter of last resort when it will not take a stand and ignores the legitimate needs of citizens. Perhaps we are entering a dark age when the rule of law is so shattered that not even the Supreme Court can fix it.
1
What this is the time for is to add four to six new seats to the Court and set some term limits on the Justices.
This current court has been packed by two republican presidents who were not elected by the popular vote and the court has become obviously and radically political.
That is a fact that needs to be pointed out to every so called purist who voted for Ralph Nader in 2000 and Jill Stein in 2016.
The democracy that has existed in the United States these last 240 years is in grave danger of extinction.
But then, so is the entire planet if republicans are still in charge in 2 years.
6
We the people need the protection of reasoned, fact-based, and principled decisions by SCOTUS. Political side-stepping on crucial issues amounts to unacceptable moral cowardice in the highest court.
The justices asked "the Oregon Court of Appeals to reconsider the case 'in light of' last June’s Masterpiece Cakeshop decision. Objectively, that disposition makes little sense." Right. The Masterpiece Cakeshop case was decided on what amounts to a procedural technicality (an error? That's debatable) in the decision of the appeals court. Few important cases are procedurally "pure," uncomplicated by errors or questionable motives of parties to the decision. Nonetheless, the responsibility of the high court is not only to sort through complications but to clarify the moral issues at the root of the conflict: the equal right of gay persons to public accommodations vs the right of businesspersons to nullify this right on the basis of their adherence to the rules of a religion. Does the concept of religious freedom have boyndaries, limits, in the marketplace, and if so, what are the limits? The current case gave SCOTUS a second opportunity to decide this core question, to get it right finally. The Justices demurred--inexcusably-- and the problem remains among us. We the people demand better.
1
I'm well aware that the Supreme Court is supposed to be a non-partisan branch of government, but if John Roberts really wants to preserve the integrity of the Supreme Court and its legacy, he needs to have a quiet word with Mitch McConnell about the latter's complete disregard for the character of our judicial system. His court already lacks legitimacy, and its legacy will be that of the most corruptly assembled court in history. He really can't want that on his own watch.
7
Greenhouse writes: "...The real reason, the documents indicate, was to provide a statistical basis for entrenching Republican power by disregarding noncitizens in the population counts for future redistricting."
So, here is my question: Why on earth should non-citizens be considered in population counts for future redistricting? Isn't redistricting meant to realign districts to ensure insofar as possible that there is an equal number of VOTERS in each district?
By the way, I am no Republican sympathizer. I abandoned that party when Bush the lesser started the Iraq war and put the cost on our children's credit card.
5
By your theory children would not be counted since they don't yet vote, nor the affirm who never have, nor would legal immigrants. Further, the constitution is deliberately vague on this: the census counts people. Not citizens, not voters.
1
The USSC lost most of its credibility when it stopped the ballot counting in Bush v. Gore. And it lost even more when Mitch McConnell refused to hold hearings on the appointment of Merrick Garland during the Obama administration. Roberts does not want to lose what shreds of legitimacy the court still possesses. He is no Earl Warren, but he surely doesn't want to become Roger Taney.
7
Having taken up the Census citizenship question on an expedited schedule, it would be totally irresponsible for the Court to issue a "DIG", essentially admitting, "We overpromised to decide this".
Yes. the issue of whom to count towards representation the House Redistricting and the Electoral College is stalking the Census question, even though it is not being argued in this case.
This question should be clarified by Congress in an era of unprecedented global mobility, where as many as 12% of the counted population are officially visitors, illegal immigrants or future applicants for naturalization. This % will grow over time even more. The nation deserves a clear, thoughtful answer on the question of representation, one that does not hand over increasing influence over the US to global migrants.
I just don't see how SCOTUS avoids the responsibility it agreed to take on.
2
Ive always found the analysis of Linda Greenhouse to be interesting. But now in an editorial mode, she has set up a situation that can only be decided one way, or it's unjust. The double jeopardy ruling is decidedly not in the current President's favor. Nor was gerrymandering case. To ignore these very prominent decisions to sway public opinion that the court might be politically partisan, in my opinion is an injustice to readers. The census question is definitely up for debate. There are reasonable viewpoints on both sides. To portray this as open and shut, and that a decision that liberals don't want to happen can only be the result of politics is just a distortion of the truth. It's become very annoying that objectivity has become rare in journalism. If being 'righteous' is the goal, it goes to follow that accurately and not manipulatively laying out the facts and the arguments should be easy. No reason to forget the cases decided in the last 7 days that clearly demonstrate a desire by this Court to get it right and fair, as opposed to heeding the wishes of Donald Trump.
4
"(But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.)"
Excuse me?
Hopefully President Trump will be able to appoint another Supreme Court justice before the 2020 elections. This will guarantee that the court will not return to its once leftward path before Justices Gorsuch and Kavanaugh were chosen. These have been excellent choices and there are many others qualified to sit on the bench. President Trump promised the voters he would choose more conservative justices and he has not broken his promise. A rarity in today's politics.
3
@KMW You must've meant------- a disaster !!
1
No matter how much the U.S. Supreme Court protests that it is not a political body, evidence to the contrary stares us in the face all the time. There are far too many 5-4 decisions, where it is a slam dunk to guess who the 5 members on the "winning" side of the issue are to be a coincidence.
3
Your argument seems to be that public opinion is a force feared by the justices; thus they dodge the incendiary cases.
If this is true (a big if) then the only real power which the representatives of the American public can wield is some form of court "packing."
This would occur not so much as a reaction to the presence of the conservative justices on the Court alone, but to the manner which Mitch McConnell placed those justices there, essentially "packing" the court with conservative justices.
Justice Ginsberg post mortem was correct: "the nation's confidence in the judges as impartial guardians of the rule of law" is long dead.
As well it should be. Justices are only human, and, given the cases presented them, most falling outside the strictures of the 18th century document we call the Constitution, they are almost required to finesse new law from their own personal ethical lodestar.
We would be better off admitting that truth than pretending these are just umpires calling balls and strikes.
They are inventing a new strike zone with each new case.
If each President appointed 2 new justices per term, the Court would, overtly, reflect the drift in national opinion on abortion, gay rights, etc. Which is not a bad thing.
1
$135,000 fine on the cake makers for their refusal to make the wedding cake.
Entirely reasonable of course. By why such a mild penalty.
If there is one think we can't tolerate is such intolerance. I stronger penalty might be even better. Why not have them hung, disemboweled and drawn and quartered?
Any as for anyone who darns suggest that this isn't good public policy, they should be jailed for such hate speech, or at the very least removed from any responsible position (like CEO) or and expelled from Harvard.
We just can't tolerate such homophobic views in our country.
As Marie Antoinette said "let them eat cake" and we just have have these right wing, reactionary zealots interfering with the fundamental human right to have our wedding cake made by our choice of bakers.
4
Assume a person asks baker to make a cake with a topping that shows a politician with his or her pants down.
What should the baker's response be if
1. The requester was a republican.
2. The requester was a democrat.
3. The baker was a republican.
4. The baker was a democrat.
5. The politician was Hilary Clinton
6. The politician was Donald Trump.
I would say appropriate response for any baker would be to decline, regardless of the baker's own politics. The caricature is simply in bad taste.
3
One wishes that the Justices would decide cases based on the law, or an explicit interpretation of it.
But it's impractical to do that in every case where often, an arabesque side-step could spare the Court the burden.
We hope the Court thinks more about the effect on the people and less about the debates in Congress.
2
The Supreme Court will be packed for balance in 2021 by a democratic government.
3
So the court does listen after all. Good news for everyone. A Supreme Court that starts churning out hugely unpopular, naked partisan rulings cannot be sustained.It will trigger a tsunami of criticism and anger that will lead to court packing and other countermeasures.
I find the hand wringing this is engendering among conservatives to be ironic beyond words. They want the court to plow forward full speed ahead, public opinion be damned. This from a group that for decades complained bitterly of liberal judges imposing their views on America.
9
@Christopher Hoffman
And the very same group that denied a Democratic President the Supreme Court nomination he completely deserved to make. What a coincidence, huh?
3
Let’s hope that the author is right. But it could be as simple as the other cases would lower the chances of a republican victory - as she points out. But the census case would increase those same chances.
Unfortunately - truth be damned - it’s all about power.
4
"(But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.)"
On the one hand, even after November 3, 2020, the electorate will likely not forget an opinion that is egregious, although the basic correction, electing a different POTUS will then be another 4 years away.
On the other hand, punting on all the "difficult decisions" will rile up the base of the Republican Party, on the basis that even though they thought they had a "slam dunk" for all sorts of conservative decisions, they would have to understand that they still do not have a basis for celebrating.
Democrats need to do their very best to win the presidency and win a majority in the Senate.
Mitch McConnell and Elaine Chao are a walking disaster couple, with lots of underhanded stuff coming to light now.
Make Mitch McConnell a MINORITY LEADER on November 3, 2020, or even better, defeat him for re-election.
Boot Donald Trump on November 3, 2020.
8
@Joe From Boston, why should the failures of all three branches of government be dumped on the shoulders of citizens? The voters must correct these systemic failures?
Congress fails to impeach out of fear for political consequences, SCOTUS fails to decide conflicts of constitutional principles out of fear of further negative public reaction, the executive branch continues to undermine the Constitution and to foist corrupt and cruel practices on the citizens--and the corrective to all this is to vote Democrat in 2020, after another 18 months of oppression? Will we even have the semblance of a democracy left at that point? Or the spirit left to try to reanimate it?
SCOTUS is failing us--no surprise. Congress has failed and the White House continues to produce serial traumas for women, minorities, LGBTQs, refugees at our border. And somehow voting 18 months from now, you think, is going to repair all the damage and restore America as we knew it? Ain't gonna happen. We need to insist, to demand, that these elected and appointed public servants start doing the jobs that our Constitution prescribes for them.
1
@Mary C.
You are correct that all three branches of government are failing to do their jobs. The Republicans keep proving that they are incapable of governing.
You say "We need to insist, to demand, that these elected and appointed public servants start doing the jobs that our Constitution prescribes for them."
Demand away. Start with Mitch McConnell. He makes it hard to get any message across, and his phones are always on voicemail, which is filled and incapable of accepting any more messages. (I have been known to call the offices of various elected officials and to express my thoughts.)
If all else fails, and at the present rate it looks like it will, it falls to us citizens to correct the situation by VOTING.
Maybe we need to elect better officials.
Vote a straight Democratic ticket, top to bottom, federal, state and local, on November 3, 2020.
Sure hope the Supreme Court restores some sanity, in spite of the partisan inclinations that have proved deadly before. Just look at the awful decision in "Citizens United", that converted this democracy into a plutocracy (or, more specifically, an oligo-klepto-plutocracy, as the few with the money have been able to steal elections with a straight face!).
7
Or, perhaps the justices are in fact reading today’s headlines. As I learned in law school, Supreme Court decisions are seldom rendered in a vacuum.
The desire to avoid rulings that will be politically detrimental to the Republican Party was the likely reason Justice Roberts voted to uphold ObamaCare. The columnist's analysis here would be consistent with the purpose of avoiding political damage to the Republican Party.
4
I guess it was ok for the SCOTUS to be political when they were handing down judgments that served to enact the policy preferences of liberals who could not get them enacted through the democratic process. But that was then...
5
@NJ Keith - Uhm the last I checked, the SCOTUS is supposed to be part of the democratic (no capital D) process. 'Publicans who have stacked the Courts with conservative justices are the pot calling the kettle black and mad that SCOTUS is not rolling over for their crazy schemes to put us back into the dark ages.
2
I have no confidence that this SCOTUS will do anything but enable the Republican Party to entrench minority rule. This applies to both the census case and the gerrymandering cases. Moreover, they'll overturn Roe v Wade. Time for another Revolution.
3
@Neal Obstat, I've wondered when I would first see the word "revolution" in readers' comments. When Congress is scared off by the "i word," it's time to use the "r word."
Thomas Jefferson gave us that instruction when he wrote (if I recall correctly) that when government itself undermines the core rights of the people, "it is the right of the people to alter or to abolish it" and to provide new safeguards for their equal rights to life, liberty, and the pursuit of happiness, without having to go to court to get a wedding cake baked or to keep a reproductive decision private, or to remain on a district's list of voters, or to have worker's health insurance cover prescribed contraceptives, or. . . . The list of attenuated rights grows day by day.
Altering isn't working. 'Time to think radically again.
1
Ms. Greenhouse misses the unifying thread that runs through the actions of the Supreme Court majority. They are temporarily avoiding decisions that might hurt yhe Republican Party and they will rule for the Trump Administration on the census case because that will help the Republicans.
1
Do judges with lifetime appointments worry about self preservation? I suppose no Chief Justice wants to be remembered as a modern day Roger Taney (Dread Scott), but Chief Justice Roberts cast the deciding vote in Citizens United, so he’s already working under a dark cloud. Personally, I’d like to see the court refuse more cases especially those driven by some behind-the-scene organization’s political agenda. It’s not that the Masterpiece Cake Shop case didn’t deserve legal review, but it feels more like a textbook hypothetical than, say, Brown, or Roe. Did it really merit a hearing at the highest level? Perhaps the number of justices needed to accept a case should be increased.
1
The Court can just duck decision for a year or two on questions of abortion or religion.
The Census is for ten years. It will re-apportion the next five Congresses. If the Court ducks that, most of its members will be gone before the question ever comes back.
That might be a reason for these Justices to duck. They'll never need to decide it, themselves.
That might also be a reason they can't so easily duck this question, because it isn't just putting it off for a term or two.
If the five conservative members of the court are dodging decisions because they might cause a back-lash against the Republicans before the election, it confirms the belief held by many that the Supreme Court is not about the rule of law, but rather just another tool to be used in the Republican's ongoing efforts to subvert democracy.
7
Maybe the court is just doing its job and isn't playing politics. That explanation doesn't work for Democrats who need to believe the court is heavily politicized (Republican) so they can keep attacking it during the election and especially when (if ever) RBG needs to be replaced--that'll certainly be a leftist cause celebre to beat all.
3
@Ronald B. Duke if the court drops the Census case now that this new information has come to light, that argument might hold some weight.
I will not be holding my breath.
2
Better than the cause celebre that was Kavanaugh? Your hope that Ginsburg dies only reveals Republican radicalization of the Court. BTW, all of the GOP appointees on the Court could/can drop dead before RBG rests in peace. #JusticeGarland #StolenSeat #RuleOfLaw
2
The Supreme Court definitely entered the "political thicket" in 1962, in Baker vs. Carr, a suit on legislative apportionment, over the objections of Justice Frankfurter.
It has since continued to become further enmeshed in thorny political questions, most of which are couched as "justiciable" or "judicial".
There are times, of course, when SCOTUS decides to creep out from under the edge of the thicket; sooner or later, however, reality forces them back inside.
The Justice Department explained the reason it wants the citizenship question reinstated on the 2020 Census questionnaire in a four-page letter to the Census Bureau. The letter explains in convincing detail why the Justice Department needs “citizen voting-age population data” to enforce the Voting Rights Act. (The reason is that the Supreme Court has ruled that states must use the number of voting-age citizens when drawing districts than ensure Hispanic voters outnumber non-Hispanic white voters.) The department needs citizenship data to ensure the states comply.
The letter is online athttps://www.documentcloud.org/documents/4340651-Text-of-Dec-2017-DOJ-letter-to-Census.html
It is true that that citizenship data could be used for many other purposes. For example, states could use the data to draw voting district maps that reflect the number of citizens eligible to vote. The data could also could be used to apportion state representation in the House of Representatives and Electoral College. The citizenship question will also inform federal and state agencies how many resident are eligible or will become eligible for federal and states benefits and programs
But these additional benefits do not make the Justice Department’s request to reinstate the citizenship question invalid. They just provide additional valid reasons for asking the citizenship question.
2
@William Case The problem with your argument is two fold:
First, there are more effective ways of getting that citizenship data for the uses mentioned by the JD, and subsequently, the additional uses you raise, as reported by the actual Census Bureau itself. It's also true that the long form census _already_ has the citizenship question present, but the long form is only sent to a rotating subset of households on a monthly basis. I've received one twice in the past 10 years.
Second, the Constitution requires a counting of "All Persons" not "All citizens". Full stop. A recent paper published in the Georgetown Law Journal provides a compelling argument for how adding the citizenship question, or similarly cumbersome questions, has led to an undercount of the population, which is in direct conflict with the mandate of the decennial census. https://georgetownlawjournal.org/articles/311/critical-history-of-united-states-citizenship-question/pdf
When you look at the actual history of where the citizenship question has been used and how, how the JD request came to fruition, and the recent revelations from the documents of a recently deceased republican operative out of NC w/r/t the real benefits of adding the census question, it's quite clear that the JD's request and subsequent justification are, in fact, invalid.
6
@William Case
Did that letter come from the same car trunk as the suggested legislation?
The census has done without a citizenship question for decades. If its critics are right and it will cause the census to be inaccurate, wouldn't it make sense to study the impact before rushing to a decision by the end of the month? If it turns out the question makes sense, then we can wait to add it in 2030 without causing any great harm.
1
The Justice Department explained the reason it wants the citizenship question reinstated on the 2020 Census questionnaire in a four-page letter to the Census Bureau. The letter explains in convincing detail why the Justice Department needs “citizen voting-age population data” to enforce the Voting Rights Act. (The reason is that the Supreme Court has ruled that states must use the number of voting-age citizens when drawing districts than ensure Hispanic voters outnumber non-Hispanic white voters.)
The letter is online athttps://www.documentcloud.org/documents/4340651-Text-of-Dec-2017-DOJ-letter-to-Census.html
It is true that that citizenship data could be used for many other purposes. For example, states could use the data to draw voting district maps that reflect the number of citizens eligible to vote. But the Justice Department does not draw voting district maps, so it did not specify this as a reason it needs citizenship data.
The data could also could be used to apportion state representation in the House of Representatives and Electoral College. The citizenship question will also inform federal and state agencies how many resident are eligible or will become eligible for federal and state benefits and programs.
But these additional benefits do not make the Justice Department’s request to reinstate the citizenship question invalid. They just provide additional valid reasons for asking the citizenship question.
1
Justice Ruth Bader Ginsberg, as part of her dissent in 2000 Gore v Bush:
Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law.''
802
@Barbara Franklin Yes, that was actually Justice Stevens' dissent, joined by Justice Ginsburg and Justice Breyer. 100% right and prescient, of course.
https://www.law.cornell.edu/supct/html/00-949.ZD.html
65
That comment was part of Justice Stevens' dissent, not written by Ginzberg.
23
@Barbara Franklin
There are no losers or winners of "this year's presidential election" since there has been no presidential election this year.
There has never been any uncertainty about the identity of the winner of the 2016 election. Donald Trump won by a comfortable margin, 304 electoral votes to 277 electoral vote.
2
As usual, an insightful analysis. What upholds the legitimacy of the Supreme Court more? A decision that the census case was improvidently granted or a recognition that the citizenship question was added on a pretext? The latter would affirm the Supreme Court's independence. The former is a political dodge. Of course, there is the third alternative, that the Court goes along with the administration's partisanship, which removes all doubt that the Court is the wholly owned subsidiary of a political party.
396
Can the Supreme Court consider evidence that was discovered after arguments? That would seem to be unfair since there would be no opportunity for rebuttal. I think the Court can decide based on the information available at the time of the argument or it can not decide, but I don't know that it can decide based on the new information.
@Mary Thus far, the courts have allowed both the Federal Government and the States to pursue the same crime. This obviates any Trump desire to grant pardons. Doesn't that place in doubt the Court's 'ownership"? How about the gerrymandering case? That went against Republicans? It seems to me, that Democrats need to win everything, or they default to "oh, how partisan." It's simply not true. And this need to win everything, or defame the opposition, (trump , barr, the courts, fox news, etc) is petulant. Reality has a way of annoying the left.
3
@Peggy Bussell
The Supreme Court usually prefers not to consider disputed facts at all - their place is to interpret the law, not to analyze evidence. Usually the lower courts are able to sort out the facts before a case gets to the SC, but, because the time sensitive nature of this case meant that it bypassed the appeals courts, the factual record is much more muddled.
To answer your question more directly, the SC can consider whatever they want. For good or ill, they are much less bound by rules than other courts.
16
The idea that Conservative judges may be holding fire to facilitate the election of their President ... is deeply disturbing. It is bad enough to have Russia manipulating our elections, but that the judicial branch of our Government is doing the same shreds a Constitutional check-and-balance.
I have no wish to see the Conservative agenda advanced though the court, but this twist is pernicious.
14
I think a lot of other commenters are halfway there in labeling the SCOTUS as an institution controlled by politics. That is not a new development. It's always been so.
The key difference is SCOTUS politics usually reflected caution about subverting majority will. It was never comfortable about getting out ahead of public opinion unless legal reasoning was so flimsy that circumstances absolutely called it to do so. Look at how long it took them to reach their current position on gay rights and abortion despite the fact that principles around those subjects haven't changed, only public discussion of them.
Now we have a group of justices who have no problem dismantling solid precedent in spite of majority opinion to achieve desired political ends. Their calculations seem clear that they want to do so in a manner least likely to expose this partisanship to public outcry. Indeed the game now seems to be how to promote conservative judicial activism while trying to fend off the backlash of the public majority. A very different politics than has been practiced in the past.
4
As always, thank you for your trenchant analysis.
2
The Supreme Court has outlived it's usefulness. They are now instruments of policy. That is when they have the nerve to take on the most contentious cases. Like all politicians, they punt when something is too hot to handle. Let the next guy deal with it.
3
@Richard Sohanchyk In a country of 300 million, it is unavoidable that you are going to have judges making contradictory decisions. Even different appeal judges will give different decisions in analogous cases. I have read en banc decisions from the Federal Appeals court that had six different opinions. A Supreme Court is entirely necessary in any system that is ruled by laws, since there is a need for a final decision (and the alternative is complete uncertainty in how law is to be applied). The Supreme Court has always been political. Let's not blame the institution for how it has been used by irresponsible politicians more concerned with winning than with the health of our democracy.
The wedding cake cases should be easy ones, but the politicized atmosphere that has infected the federal judiciary, including the Supreme Court, has managed to make a mountain out of a mole hole.
Imagine a case where an evangelical baker refuses to make a wedding cake for a Jewish or Muslim couple on the grounds that non-Christians are apostates. Or consider a Christian gay baker who married his partner in a church "in the presence of God." What happens if he refuses to bake a wedding cake for an evangelical couple because their beliefs condemn his marriage to his partner. Can an ultra-orthodox Jew refuse to serve a member of a reformed congregation, or a Shia refuse to serve a Sunni?
If you engage in a business that is open to the public, you cannot discriminate against someone in a protected class based on your religious beliefs.
21
@Lee
I agree chapter and verse with Lee.
But we need to remember:
IOIYR!
By the way, just wondering whether SCOTUS is also getting just a bit nervous over the talk about expanding the Court. It would be interesting to have Greenhouse devote a column to that issue.
What, for example, would be the mechanics for doing this?
3
@Lee A thoughtful, well reasoned comment. It deserves a counterpoint. Not every "harm" deserves a legal remedy. The problem with these baker cases is that there are plenty of other bakers you can go to. One can readily think of discrimination scenarios in which the services or goods are not so easily and adequately replaceable by an alternative. Those are the instances on which the Supreme Court should focus.
2
Millions hope that your insightful, per usual, analysis is spot on Ms. Greenhouse, and that the Supremes decide to “dig” themselves out of a potentially crippling legitimacy crisis. It’s their own court to lose.
158
@John Grillo And this Court is facing a possible addition of 2 or 4 or 6 Justices if the Dems in 2021 are in a position to radically reform this Court.
This is all the more reason for the GOP Justices to tread more lightly.
8
@John Grillo I think the analysis also supports a different conclusion. Until the next election the conservative majority in the Court are avoiding cases where their decisions will be immensely unpopular and might cause an election backlash against the Republicans. Whether the election goes well or not for Republicans, after the election the conservative Court will proceed to remake civil rights in the vision of the conservatives that confirmed them to the Court.
8
@Doug Karo
You might be correct in that but the thing that needs to be taken into consideration is the timing. Right now we are sitting on the pinnacle of good times which means that realistically the only direction to go from here is down. This bizarre government designed stock market/economy combined with relative world peace simply cannot last forever. The cracks are starting to show everywhere. If the conservatives continue to cement power through ill gotten means they will only end up setting themselves up to own a giant mess that will be impossible to clean up without major concessions. In that respect, the timing couldn't be better (or worse depending on your perspective) for conservatives to continue to tarnish their brand.
1
Judicial comments ‘hostile to religion’. What a shame the Masterpiece panel didn’t have a secret, black box for discussion. Still unanswered- do prejudicial comments made before or after a nomination, a decision- get the same treatment? Hostility to women, to atheists, to a political party?
And what ever happened to that old (Mormon case, I think) decision making a distinction between religious belief and actions?
This court does seem to be dodging important questions. But I think they may be finding entanglements of their own making are now wrapping them in a spider web of ...confusion. For all of us.
Are these naifs finally realizing that laws respecting articles of faith are socially catastrophic as well as patently unconstitutional?
5
We are on the verge of losing America.
The Trump administration will not follow the laws and rules, and they are getting away with it.
And they own the DOJ, the Senate. and the Supreme Court.
The current Supreme Court was designed to be a subsidiary of the Republican Party.
They have the resolve.
They know what they want.
11
If someone feels their business is only for heterosexual people, they should post it proudly on their storefront, website and advertising. Then good, tolerant people can stay clear of these intolerant people and their business. Using your religion to hurt people is terrible and should not be encouraged. I cannot believe any god would endorse intolerance. Our Supreme Court is not doing a good job. But what can we expect of trump appointees.
13
@MLE53
My thoughts exactly. I have believed for some time that requiring businesses to publicly display their religiously based restrictions on customer service would be an excellent way for the court to resolve these issues. If devout people are so convinced of their righteousness they should have no problem with it.
4
The current makeup of the Supreme Court is a major disappointment to me. Many of its justices’ beliefs are antithetical to a forward-looking society. However, the one good thing about lifetime appointments has always been the inability of politicians to interfere in decisions. Until Trump. Kavanaugh is an unabashed Trump toady and just like AG Barr and the despicable McConnell they are hired guns in the culture war, that pits Republicans’ backward-looking religiosity against their own interests and progress. Meanwhile the plutocrats are making out like bandits.
4
So, in other words, the apolitical SCOTUS is, in fact, driven by politics. Can't have Obama judges. That would be wrong. Having Trump judges, on the other hand......perfectly reasonable. The real question in all this is, like in sports, you can't fire the whole team, and , in this case, you can't fire the manager. But the question will be what will be the legacy of the 'Roberts' court. They have one thing to look forward to... how will they respond to all the Trump decisions that will come barrelling their way...refusing to follow congressional subpoenas and all? Do they cave to the President to avoid his rath? Imagine Kavanaugh ruling against Trump. And Trump responding with "I should have believed the Professor's allegations about him. I bet he did what she said." Think it would never happen that way? I bet Kavanaugh knows what would likely happen. You think he wants to go through that all over again? Mitch and the boys would just sit there with their stupid grins. Nope, no foul. Not that we see.
4
Thanks for the excellent explanation of options available to the U.S. Supreme Court to ensure that the Hofeller evidence is adequately explored in determining whether the government's stated reason for its census citizenship question is pretextual.
4
Not holding my breath. the Republican justices are party hacks.
3
if the Supreme Court eventually rules in favor of the "religious" to refuse service to persons of the same sex getting married, then States should require those businesses to prominently display those terms of in-service in their windows and in their advertising. Must as segregationists used to note no service to colored or Jews. then the rest of us can decide whether or not to do business with them.
5
It’s the Roberts Court, and he’s no fool.
Seriously.
1
Linda, I look forward to your analyses due to the measured, thoughtful responses you use to inform us. I’m not sure if your thoughts are correct, or if I should be calmed a bit by them. It sounds like they are trying to hold off on cases that might question the credibility of the Supreme Court. That is so sad to me, although I’m OK with putting off these cases, especially under the circumstances of having a majority of very conservative justices and a “leader” who is a bully.
On a larger note I feel as if SCOTUS, as an independent branch of the government, is being whittled away. I’m 69 years old and have been a student of history for most of my life. I remember as a young woman admiring the Supreme Court as a pillar of fairness, untouched by the politics of our country. Most of the time, they would “do the right thing” when others would fail. It’s what got me through my early years when the foundation of our democracy was challenged. Now, I do not feel they are independent. So many of the cases that seem simple to me, like Citizens United, Hobby Lobby, Shelby, were in my opinion, decided wrong. And while other cases through our history have been wrongly decided, for the last 10-15 years I felt as if the Justices’ political leanings have definitely impacted their decisions, thus leading me to distrust the judiciary. I’m not sure where this leads us as a nation going forward. That said, I’m grateful to you for your insights, always steady and insightful. Thanks.
574
@rosemary
They lost my respect when they put George W. Bush in the White House. The way they did it was a travesty and showed their true colors - red.
103
@rosemary Presidents have always nominated justices who shared world views with them, but it's interesting to me how decisions involving civil rights, for example, have been deemed "political" by the right. Brown v Board of Education allowed students of all backgrounds a shot at equal education. I don't know how that decision is seen by some as "liberal." On the other hand, a close look at Citizens United and the Heller decision favors those constituents who support the Republican platform. Those decisions don't help the country; they help the agenda of one party. For the sake of our democracy, I do hope that cooler heads on the Court see the importance of remaining a bulwark against the divisiveness that has been stoked in the political arena. We have indisputable proof that the need for protecting the voting rights of minorities was the last thing on the minds of those who came up with the idea for the citizenship question on the census. (that the GOP would give a hoot about voting rights for minorities is a hoot). Allowing that question on the census would be the last nail in the coffin of our democracy. In the Trump democracy-destroying era, it's imperative that the justices support their court and this country.
55
@rosemary
I agree with your sentiments completely. SCOTUS is increasing failing as an independent branch of government and the nation is suffering more as a result.
All the while Linda Greenhouse diligently, carefully, and in detail, documents and explains it all.
This is what happens when:
A) the electoral college skews right so presidents are elected against the substantial popular vote that wants otherwise and
B) the senate majority leader violates over 100 years of precedent and refuses to let a sitting United States president fill a SCOTUS vacancy that appears during his term.
66
If Trump wins in 2020, to paraphrase the long reigning Louis XIV of France, “After 2020, the deluge.”
3
Thank you for this article. I believe that SCOTUS is already a part of the 2020 election in which the existence of our democracy is at stake.
There is a rising tide of fascism throughout the world with autocratic leaders and rubber stamp courts. The GOP, the American fascist party, has found its Great Leader, in DJT a vulgar showman, racist and white supremesist with contempt for any limit on his power . He's ignorant, lawless, a charlatan who is an ignoramus and a meglomaniac. He has many secrets which are being kept by lawless and unconstitutional means. This man/child believes he is above the law and his lawyer the A.G., agrees.
Our Founders wanted government by the people while the GOP wants government by the rich. Our government has been bought and sold and in 2016, by not coming out to vote, we sent a message that we wanted change and the result was the Trump presidency which joined in the attack on our democracy.
In 2018 the voters issues a DIG and the Democrats took the House in a landslide. The majority of Americans see Trump and the GOP for what they are: lawless, greedy and unAmerican and we want both change but to restore our democracy and its reputation. What's the point of enacting progressive legislation if Trump's Court holds it unconstitutional. Much of what's wrong are bad decisions which are killing us like Citizens United.
If we elect a progressive president and congress we must repair the Court and add 4 new seats.
.
And when the pendulum swings the other way Republicans will add 4, and so on. Packing the SCOTUS will finish it off and it will have no chance of being perceived as anything but partisan.
2
@La Resistance
By the time the pendulum swings the other way we will have a constitutional amendment limiting the number of seats and the term of office to 12 years which can be extended to another 12 years if the Senate agrees and again after 24 years, etc. In addition no president in any one term cannot appoint more than 2 Justices except to avoid even number of seats. All federal Judges now sitting shall begin, upon ratification, a term of 12 years which can be extended by the Senate for an additional 12 years and again after 24 years, etc. In 12 years we can clean out those who are political. There will of course be public hearings in the Senate.
@Sheldon Bunin
Perhaps you could borrow a little from Canada's way of naming Supreme Court Justices. Our Prime Minister office has the power to choose Supreme Court justices but since 2006, an administratif process was put in place in order to ensure transparency of the nomination process:
The justice minister, after consulting with the legal community recommends a list of names to a selection committee comprised of 5 members of Parliament, of which 3 are from the majority rank. They analyze the list and must UNANIMOUSLY prepare a shortlists list for consideration by the Prime Minister and Justice Minister.
Once the government has made its choice from this unanimous short list, the selected judges appear before a special parliamentary commission to answer members' questions.
Once this whole process id done, the Governor General officially names the new judge.
And retirement is mandatory at 75.
I wonder if Roberts - and perhaps kavanaugh - see the court now in an ideological pickle. Like the proverbial dog that caught the car, they may be belatedly realizing that its view of constitutional purity may not only move the judiciary far beyond where most americans want it to go but also inextricably bond it to trump’s embrace... a move that could only weaken overall faith in the judiciary and, ultimately, their hold on it.
3
The right-wing supremes are merely throwing a couple of bones to democrats before they lower the boom on the census question - to affirm the new question will help red states and hurt blue states for 10+ years. They will let republicans proceed with the new question and totally ignore all of the newish evidence that the whole thing is a scam.
5
No matter what action they take, the SCOTUS decision will be seen as politically calculated one. All thanks to this country having a wedge driven squarely through it's heart by power hungry politicians. Mitch stole an appointment and stacked the deck. and by his doing so, the American people have been denied a SCOTUS with judges fairly chosen. Add to it Kav's performance and all faith that he could be trusted as impartial, is out the window.
The damage is done.
328
@JDH All the more reason for the Dems, if possible, to add 2, 4, or 6 more Justices in 2021. McConnell has set the stage for such a step.
20
@John Krogman
Let's think this through... where does a move like that end? How will it be perceived and twisted to discredit it as something that it is not? And would the current court stand in the way of such a massive change? How do we find ourselves having the ability to hold the likes of Mitch McConnell accountable without upping the ante with even greater power grabs? IMO, this would be a power grab and would be seen as such. Two wrongs do not make a right... I don't know the answer. We need real leadership to bring us back to the level of integrity that a Democracy demands for it to survive. If we have someone of that ilk running our country, they may be able to convince the masses that bringing balance back to the SCOTUS with an additional judge or two to create that balance , just may be what is needed. We have to get one first though to even be able to try. I see EW as such a leader but the R's will have to be weakened to the point that their actions and lies are seen for what they are. Divisive and power hungry.
13
@JDH
I have room to think about enlarging the court......
perhaps enlarging their thinking.
Mitch McConnell should be removed from office.
In NO way does he serve the interests of this country by flouting law at every turn......
"Evil" is a word for Halloween....but if there exists a better
candidate than McConnell, I can't imagine who....not even trump.....
22
The McConnell treason was significant. Garland was a moderate and honorable selection.
Time will tell if Kavanaugh, Gorsuch and Roberts are as doctrinaire as some of us assume. All three have cast single votes contrary to our fears. Honest Conservatives might feel the same about the "girls" (respectfully). Even Thomas sometimes surprises, in his goofy way.
2
Isn’t 135K a rather hefty fine? Perhaps there are two issues in this case. Maybe by kicking this back to Oregon, a more proper outcome finding in favor of the couple but knocking a zero or two off the right side of the fine imposed on the bakery can occur. As to the court dodging, yes totally.
2
@James Allen I suppose I understand your point, but I would propose a counterargument: Would you be comfortable saying this if the customers were a mixed-race couple?
1
Its the romantic in me I'm sure, but I like to think Trump's Obama judges comment is stuck in Robert's craw, and Kavanaugh, turns out to be Trump's Justice Warren.
1
This is my shout-out for Linda Greenhouse. Her regular coverage of the work of our Supreme Court is always extraordinarily well-informed, lucid and to the point, an invaluable aid to understanding what is to American citizens perhaps the most important branch of our government. I have practiced law for sixty-three years and regularly follow the work of the Supreme Court. And still learn much from her columns.
23
The time came long ago to completely reform the federal courts in the United States. After the signing of the constitution, when political parties were yet to be created, our country and its government have become, at times, radically politicalized, which has transformed the federal courts, especially the SCOTUS, just an extension of Executive Branch. There is absolutely no separation of powers when the country’s judges are of a political affiliation and appointed by a president and confirmed by a ruling political party.
What I don’t understand with all the opinions and writings about our courts nobody ever brings this up.
In order for the judiciary to be separate from the executive federal judges need to be elected individuals. It should be a rule that no judge should be of any political affiliation. The Supreme Court members should be elected by a majority of the 852 federal judges (not counting the Court of International Trade). Term limits need to be put in place (say 15-20 years) that reflect the changing of times and will of the people.
It is completely unacceptable that our courts rule either by political beliefs or personal beliefs and not in the interests of the people and the constitution that they should protect. A committee should be formed that has the power to remove any judge of this country who violates any of the rules set forth.
When you have appointments of a man allegedly committing rape and a man who sexually harasses something has to be done.
2
@David Parchert
What’s to prevent that process from being as corrupted as the current one, almost instantly?
Another way to view the "punt" in Klein v. Oregon Bureau is this:
As Greenhouse points out, the Masterpiece Cakeshop case did not resolve any important constitutional issue. The decision was that the officials in the case expressed "impermissible hostility" to religion.
The inference to be drawn is that "impermissible hostility" to religion was all that protected the Masterpiece Cakeshop's otherwise unconstitutional refusal to meet their public accommodation responsibilities. This may be the "light" to shed on the Oregon dispute, indicating that if the lower court does not find "hostility" to religion, then the ruling stands.
6
The seemingly obvious politicization of SCOTUS has drawn the attention and consideration of a number of the 2020 candidates who are openly suggesting changes to SCOTUS - such as adding justices, term limits, new ways of appointment etc., none of which the Constitution forbids.
Changes must be made regarding appointments in order for the majority of the public to have any confidence or respect for our Justice System.
19
@Pat Boice: You are only suggesting Supreme Court changes because they are needed owing to the activities and unethical, political-rule-allowed fundamentalist forbearance approved by the United States Senate. If the Senate worked properly, your changes would not be topical. If senators would find other work or would work appropriately, or if voters assisted dutifully, hope and pray, your remedies might not be needed.
The notion that the conservative justices somehow agree that their decisions will produce a backlash and not a political win for Republicans is an interesting but unrealistic conspiracy theory.
Roberts wants SCOTUS to be relevant and not discounted as a just another political branch--so declining difficult cases makes sense in this divided political landscape.
3
On the subject of refusing service for a wedding that violates religious principles, I would like to ask if the business owner would provide service to a heterosexual couple who had previously divorced their former spouses, especially if those divorces were the result of an affair between the couple now wanting to get married? If one wants special status on the basis of one's beliefs about the sanctity of marriage, those beliefs should be consistently applied in one's business.
39
@Alicia Lloyd I think we both know the answer to that question. For folks like these, all sins are equally bad, but some are more bad than others. (Thanks George O, hope I didn't overdo it.)
5
Kennedy's "Cakeshop" decision was transparently a punt. But not all punts are equal. A punt may be genuinely judicious, meaning "prudent." Kennedy's punt in that case, however, was cowardly -- contemptible & pusillanimous. In that respect, it was characteristic of Kennedy's "swing" status on the court. He was hailed by some as a hero for his philosophically principled decisions in the historic gay rights cases. But he was also a devout adherent of Catholicism, a notoriously anti-gay religion -- a religious commitment that kicked in with his votes on "religious liberty" cases. I believe that the "Cakeshop" case presented him with with a conflict between those two personal commitments that he was unable to honestly resolve, so he resolved it dishonestly, with a punt. Disgraceful.
4
Ms. Greenhouse ably explains why the Court is refraining from controversial decisions. This should be a lesson for the general public. It takes expertise to read the Court. And disgust at an angry Justice Kavanaugh isn’t enough to be able to foresee the subtleties of his rulings.
7
Whether or not the allegation that some policy wonk suggested the citizenship question for presumed partisan reasons, the fundamental questions are these:
1) Does the Executive Branch have the right/responsibility to conduct activities vital to its function?
2) Is it legally and constitutionally reasonable for any Administration to want an accurate count of how many:
• Guests it is caring and/or responsible for?
• Citizens it is responsible to?
1
@Mulder
" Does the Executive Branch have the right/responsibility to conduct activities vital to its function?"
The Executive Branch has the Constitutional duty to "ensure that the laws are faithfully executed" not to do whatever it wants for whatever reason it wants no matter what the law (or Constitution in the case of the Census) may require
35
@Mulder To answer your questions:
1) Yes, if they're done through the appropriate processes, which this was not.
2) According to the Constitution, which says nothing about the Census needing to count only citizens, I think you could actually make a pretty good argument that it isn't - especially if doing so would depress response rates and therefore make an accurate count less likely, which it's pretty clear this would do. The point of a census is to get an accurate count, and this would make that less likely to happen - so if you're not technically violating the letter of the Constitution, you're certainly violating the spirit. (Again, though, see point 1 - if it's done in a capricious and arbitrary way, that's a problem in and of itself.)
9
@Mulder
I would suggest there's a third fundamental question. Do we have a right to expect that our elected and appointed officials will act in good faith and tell the truth, and when they don't does that render their actions, even if technically within their authority, illegitimate?
6
The real project for the federalist society and its five representatives on the Supreme Court is entrenched republican control of the government. A consistent line of recent decisions, starting with Bush v. Gore, and running through Citizens United, Voting Rights Act, Voter ID and other suppression, and gerrymandering (e.g., last year's Wisconsin case) shows this. The census case, which could have an impact for at least 10 years, is too important for the republicans to pass up. They will decide it now.
11
If SCOTUS loses its moral authority by deciding cases on the basis of which party gains, then the Democrats should fight such behavior by expanding the size of SCOTUS after 2020.
16
Your columns are always enlightening - understandable to those of us without a law background. They kind of zip along in clear and often fun prose. Thanks a million. You make a difference.
46
If, as Ms. Greenhouse posits, the instinct for self-preservation of the Supreme Court requires furthuring the political prospects of the Republican Party in a presidential election year, let's face it: the United States is doomed.
15
@Martha R Not only the United States is doomed, the human race is doomed. Democracy is fragile as a reflection of human nature. Evil prevails. History will repeat itself and, worse, human race will destroy itself. I was once a positive person but I have never been so pessimistic about the future.
@jnl: Many years ago, astronaut Alan Shepard traveled to the moon. Harvard historian Jill Lepore in the Times documented Shepard’s surprise at the view: “If somebody’d said before the flight, ‘Are you going to get carried away looking at the Earth from the moon?’ I would have said, ‘No, no way.’ But yet when I first looked back at the Earth, standing on the moon, I cried.”
In 2019, Republicans are not carried away, not weeping, and the earth goes down the drain to their indifference. Alan Shepard was not a Republican. He was a hot-shot astronaut, jet pilot, Corvette driver, scientist, Naval Academy graduate who had a way with plain English. There are no words for the Republican death cabal.
1
Here's another scenario--not much more implausible than Ms. Greenhouse's:
* one Associate Justice (Kav, for short) remains the subject of scores of misconduct complaints alleging inappropriate partisanship
* a committee of the judiciary's highest body for adjudicating such complaints, over which Roberts ultimately presides, is reviewing appeals by complainants
* the judiciary's Code of Conduct *requires* judges to disqualify themselves where their "impartiality might reasonably be questioned"
* After Kav showed his bias in his 9.27.18 confirmation testimony, it is clear his political impartiality "might reasonably be questioned"
* even though Supreme Court justices are not subject to rules regarding judicial misconduct, Roberts has assured the public the Justices do abide by the Code
* ergo, Kav should have disqualified himself from the Census case because the matter is *the* most politically fraught case since Bush v Gore
* despite the fact that Kav already took part in oral argument, *the Court could determine that it would be best if a final decision on the Census case was delayed* until the judiciary decides if Kav's conduct on 9.27.18 was inappropriately partisan or not
* If so, the Chief Justice should *ask* Kav to disqualify himself from the Census case (he cannot be forced to do so)
* If not, well, Gallup will certainly record a decline in the public's "confidence" in the Supreme Court when it issues its annual survey results later this month...
34
A decline in the public's confidence in SCOTUS should be met with an increase of the size of SCOTUS to temper the bias of these lifetime appointees.
5
@Observer
agreed. i personally find Mayor Pete's suggestion worthy of consideration
2
Ms. Greenhouse,
I always find your articles very insightful, and I thank you for that. You clearly present the facts about the inner workings of the court without bias, enabling readers like me to come to our own conclusions. Great job!
(I wish I could say the same about the majority justices who comprise that court.)
19
Ms. Greenhouse is the most astute Supreme Court observer writing these days. By a long shot. I never pass up the chance to read her opinion pieces. Thank you, Ms. Greenhouse.
64
Wishful think by the left. The census question will be asked as it has been before, this should be a 9-0 decision but the court leftists will not abide.
5
@Knute this question is being added to depress responses in Democratic-leaning areas. (Fortunately, red states will also be hit by this.) And it was done without going through the proper process for vetting the impact of adding such a question.
The only thing you're right about is that this should be a 9-0 decision. But not in the way you think.
3
Ms. Greenhouse's advice to the Justices on the Supreme Court is thoughtful and sound. It will be interesting to see if they take it.
15
Wonderful article. Nice analysis.
The number of times that Trump has trumpeted 'his accomplishment' of putting his nominees into the Supreme Court has by itself damaged its credibility beyond any salvation.
Trump has implied strongly and multiple times that these new judges are partisan by boasting of 'his judges' getting in.
47
Ms. Greenhouse's analysis is always helpful.
In the census case the right wing Justices, during argument, seemed very willing and able to make believe that the pretext (ok, lies) told by the administration about the need for the citizenship question was not a pretext. Now with the new information they have been caught with their prejudices showing, and maybe they will be ashamed enough to back down.
We know that some appointed by Republicans have no shame, but maybe the others do.
28
The Republicans on the Court are in a bind. First, they should never have agreed to hear the citizenship question without any decision by a court of appeal. They now look like they are in a hurry to help the Republicans.
Second, there is no reason to allow a citizenship question, but a lot of reasons not to. The country has operated just fine without a citizenship question on the census questionnaire, there are other surveys that look at the number of non-citizens in the country and, of course, the question itself is loaded with partisan purposes.
Finally, they really are boxed in on the issue of partisan gerrymandering. This Court is torn between their fealty to the Republicans and their need to follow the law, not make it. I could see them sending the citizenship question back to the lower courts and then feeling free to rule that the Court should stay out of gerrymandering decisions. This would postpone the census issue while granting free reign to the Republicans on the gerrymandering front. The two issues are joined. Of the two I think the gerrymandering issue is the more important. And I think the Court will show its real fealty in deciding that issue.
5
So if the Court doesn’t allow gerrymandering to continue or the citizenship question you will say that they made the wrong decision because they were boxed in?
@Richard Bourne
I seriously doubt they will reverse both of those sets of cases. The question is whether they will reverse each set of lower case decisions, reverse one or reverse none. I think they are hoping to create some semblance of fairness by sending the citizenship question issue back to the lower courts. They really don't have that option with the gerrymandering cases, I think that decision will show their real colors.
So in effect the Roberts SCOTUS, which we all know is nothing but a subsidiary of the Republican far right, is taking a pass for now on controversial cases so as not to jeopardize Republican election chances. America the Rigged.
135
@Rover...
The Miami Herald, not exactly a bastion of political bias for Republican causes, recounted the ballots of the 2000 election in Florida and found that Bush ended up with a close, but comfortable lead over Gore...
America the rigged? Not exactly. Democrats the sore losers? That's been proven time and again.
2
@The Owl well shoot, then it sure would've been nice if the court would've let that counting continue, wouldn't it?
4
@The Owl Do you have a source for that? I'd like to read it.
And if you're going to throw stones about 'sore losers,' shouldn't you mention the GOP under Obama as well? :p
3
This country has for decades operated under the "one person, one vote" rule, mandated by Baker v Carr. How does this square with different congressional districts' sizes based on how many citizens are in the district vs how many people total are in the district?
If each vote is equal, then mustn't every district have the same number of citizens? If that's the case, how are districts draw if they don't know the exact number of citizens in the districts?
I see the obvious problems that stem from asking the question, i.e. certain populations will under report and the true population will be unknown. Since each Congressperson represents approximately 710,000 "people" based on the last census, how is "one person, one vote" being maintained? Unless the citizens and non-citizens are perfectly distributed across each district, it is impossible. How could this possibly be done if Census Bureau doesn't keep track of who is and isn't a citizen?
1
@Gary
The Constitution itself sets forth the rules for electing members of Congress. Since those rules are in the Constitution, they can't be unconstitutional.
In general, "one person one vote" applies at the state level.
14
@Gary
If voting were obligatory for all citizens as in some totalitarian countries your reasoning might have some merit. However the census is NOT ABOUT VOTING but about distribution of resources and a theoretical or projected balance of representation among different regions.
16
The constitution clearly states one and one thing only regarding the census: to count every person living in the territory of the US. They even specifically included people who were not considered citizens or who did not possess the right to vote.
Even if you wanted to make a one person one vote argument based on representation, support for that cannot be found in the census clause or the constitution as a whole.
Also, representation is clearly not the same thing as voting. Everyone gets a single vote. The question is about the power of that vote in terms of the number of votes required for each representative vote in Congress.
To use census data to determine one person, one vote by that measure, you would need to shrink congressional districts in populated states or eliminate or consolidate them in less populated ones. And that doesn’t begin to deal with the senate.
4
GREAT article! Thanks, Linda.
12
Despite being perched at the pinnacle of the least democratic branch of our divided limited different power constitutional republic of united states, a sage once said that the Supreme Court of the United States follows the election returns.
The nonsensical notion that American law is fair, just, moral and objective is belied by the fact that both humanity personhood denying black African American enslavement and separate and unequal equality defying black African American Jim Crow were both lawful.
The partisan political federal judge Presidential nomination and Senate advice and consent process exposes the law in all of it's callous, corrupt, cruel and cynical hypocritical worst demons of our human nature.
10
@Blackmamba
American law is the result of a political process so it only as fair and just as Congress makes it.
In general, American Law is in fact far more fair or just than say, Chinese Law, which is made by a dictatorial elite in the Chinese Communist party to suite their needs. And even then, the law is often ignored.
So, American law is far from perfect but on the whole it is pretty good.
8
@Amy I do not care about other nations laws and who crafts them what bothers me s the pretense that somehow ours is such a fair system
If you’re white, Evangelical and male. The rest of us lack that happy certainty.
This is an illegitimate Supreme Court populated with one stolen seat and another openly partisan justice who spouted Trumpian grievances during his confirmation hearings.
The next Democratic administration must increase the number of justices by at least two in order to correct this imbalance and restore the integrity of this high court.
41
@Vivek...
Your argument is spurious.
There is nothing in the Constitution to say how the Senate is to handle nominations to any Court; indeed, it guarantees that the Senate, and the Senate alone, determines the rules by which it is to operate.
And, if you took the time to read the Rules of the Senate, something which clearly you have not done, you would understand that the Senate is under no obligation to do anything on a nomination to any position requiring Senate confirmation.
It is your willingness to continue to flog a totally inaccurate, indeed inventive, interpretation of the Constitution that suggests that you are unqualified to make a reasoned comment on the subject.
Get over it. Your view did not, and will not, prevail.
1
@The Owl: Your fundamentalist view precludes wisdom. It suggests the Senate has no duty to act in good faith. One thinks you are wrong. If you are right, you are circumventing wisdom.
1
@The Owl it never ceases to amaze me how many people will take a stand in favor of an ideology that almost certainly does nothing to benefit them personally. What, you think a corporate-friendly court like this one is good for you just because it might tell women what they can do with their bodies? (To say nothing of the fact that Mitch McConnell has now admitted that his rationale for blocking Garland was all hogwash and it wouldn't apply this time around, which means you're also defending naked hypocrisy - which should be a real sign you're not doing a smart thing.)
Also, not for nothing...three million more votes. Buddy, Americans aren't that stupid - they, unlike you, get exactly what people like McConnell are offering. They understand it. It's time you figured it out.
1
Well reasoned, as is usual with you, Ms. Greenhouse.
But it says here that the John Roberts Court is less interested in law and judicial integrity than it is in its obvious entrenching of Republican power throughout both the government and the land.
Has there ever been a Court as nakedly partisan as this one? In 2012, when Chief Justice John Roberts voted with the majority to rescue the Affordable Care Act (on what amounted to a pretext), he was nearly physically assaulted by Clarence Thomas for announcing his intentions.
But here, with a once in a lifetime opportunity to legally disenfranchise non-whites and re-institute poll taxes and racist voter ID laws and to extend, with no end in sight, Republican political hegemony, what do you think is more to this Chief Justice? Fairness?
It won’t punt on the citizenship question. No, it won’t.
12
Translation: The liberals on the court are standing firm and unwavering in their left-wing ideology while some “conservatives” are going wobbly (as they always do.)
4
@JQGALT
Gee, I was unaware of that obscure definition of "wobbly": supporting the Constitution and fairness.
3
Well done well done. But you stop one step short of the SCOTUS-deep state ENIGMA. ROBERTS has a vision where he wants the country to go, and is guiding the court to take cases and reject cases that fit his plans. He then takes inconsequential losses to liberals on cases that mean little, in order to assert victory on cases than are foundational to his conservative project.
Why ENIGMA? The allies cracked enigma and had to be selective about when to win and when to lose to preserve the illusion they did not know where every Axis soldier and sailer where.
SCOTUS will, as you say, dodge cases that do not fit their plan of being inconsequential losses or glorious victories.
Your example case would be a highly consequential loss, or a too-glorious victory that would reveal enigma has been cracked- the revelation that SCOTUS is rankly partisan and needs to be stacked and reformed.
4
Hats off to John Roberts. He is an excellent legal thinker but his greatest strength lies in wanting to preserve the Supreme Court as an institution.
4
@Amy John Roberts is a hack just like the other Federalist Society-backed judges - that's basically a requirement to get on their list.
Don't believe me? Two words: Citizens United. And I could very much go on.
1
@Amy
Albeit a corrupt one.
That the five conservative justices on the Supreme Court would postpone any landmark rulings that might negatively impact the Republican Party’s chances in the 2020 elections is entirely consistent with everything in the right-wing playbook. If there’s one thing they’re good at, it is long-game thinking. The Heritage Foundation vets all high-level judicial appointments (including Gorsuch and Kavanaugh, most recently) for “Conservative” (translation: reactionary right-wing) bona fides, for example. This is all part of their strategy: Wait until after the 2020 elections to drop the hammer on civil rights, separation of church and state, First Amendment protections, women’s health, labor protections, gerrymandering, and just about everything else that separates the United States from the model of feudal, medieval Europe—i.e., everything the framers of the Constitution sought to leave behind. Think about that.
35
Maybe we can have an investigation as to possible Russian influence in the Court. This Court can only be considered legitimate if we are in favor of the decisions they are making.
6
@David Walker
I think you are absolutely right.
The model is, "feudal, medieval Europe".
What confuses people is that our "material culture" looks nothing like the "Pitchfork Economy", that just because they have an iPhone, that somehow feudalism is no where on the planet, that it's just some silly thing in a "Robin Hood" movie.
This Supreme Court is determined to slap a few more rungs onto that hierarchical ladder.
In context, here, is the "Masterpiece" case, where a member of the panel asked questions about "religion", and, therefore was deemed "hostile" to religion.
Since "religion" was the REASON the bakers named for refusing to bake a cake, then, of course, the panel-member had a right to ask questions about "religion".
In fact, as long as he wasn't chasing them with a stapler, he had the right to ask them HUNDREDS of questions - or have we recently, somehow, lost our RIGHT to QUESTION any facet of religion if that is what the person is basing their entire case on?
"Masterpiece" is another sly means of dismantling the separation of church and state, and, Church AND State was the backbone of feudalism.
Oh, dear, too early in the morning and now I have feudal lords on my mind.......
7
Let's see if we can dig this. The Hofeller letter is simply too late. Doesn't count.
It seems to me that,more than once, these pro-life, catholic justices have ruled that individuals could be killed by the state because some exculpatory matters arrived too late.
10
And so the third bastion of checks & balances has fallen. To deflect and wait until after an election so the Republican Party isn’t harmed? Now more than ever we need term limits, choosing justices by a non-political group and installing Merrick Garland as a centrist and repairing a harm not just to him as an individual, but to the Constitution that McConnell flagrantly and proudly is destroying in plain sight.
7
It is too late to save the Supreme Court. When McConnell refused to consider Obama's pick for the Court vacancy, the ridiculous Citizen United decision that Corporations have the same rights as people do and the installation of Kavanaugh, or even the appointment of Clarence Thomas, the Court has become nothing more than another political entity to me. This column explains the mechanics of that politicization. I don't trust this court to make unbiased decisions on constitutionality. The Roberts Court is a disappointment. He has presided over a Court that has lost its way.
38
Ridiculous assertion that SCOTUS will or should punt on the census case, where the commerce secretary clearly has the authority to add a citizenship question, with 200 years of precedent on similar questions.
3
What a tangled web we weave when we conspire to deceive. Is there no limit to Republican chicanery? Of course not.
21
As usual, I find myself having learned something from one of Linda Greenhouse's columns. “Dismissed as improvidently granted" - what better device to employ to clean up this particular mess? Perhaps Justice Roberts will find it attractive, because I imagine one thing he and the rest of the Court do not appreciate is being lied to. And the Hofeller revelations demonstrate just that: the administration is lying through its teeth about its rationale for adding the citizenship question to the census document.
Self-preservation is a strong motivator, and the desire to avoid drawing attention to itself at a politically inconvenient time might be sufficient to make the Court back away from this one. But an even stronger motivation might be to avoid having its ruling contaminated by the dishonesty of one of the parties.
This is a serious reputational threat to the Roberts Court, which makes it enough of a reason for the Chief Justice, at the very least, to be open to DIGging his way out.
17
@Bill Levine The fact pattern was different, of course, but Trump v. Hawaii upholding the Muslim travel ban suggests to me that they don't mind being lied to all that much -- depending on who's doing the lying.
3
The job of the Supreme Court of Canada is not to determine law but to determine justice.
I still remember the feigned outrage of Clarence Thomas during his Senate confirmation hearings. Justice requires truth not passion and America is now about passion, nothing but passion and all passion. That is why dogma always conquers truth. Truth is measured and weighed.
The chances of America ever being united are a longshot and it I could be so humble as suggest a name change that seem at least one side of your political divide. Never Neverland seems a more accurate name for little boys that never grow up.
The Congress may never pass meaningful legislation but it is sure doing a fine job of putting little boys on the bench even if some of them are little girls.
John Roberts has the most difficult job in the world in a country lead by Peter Pan.
Try as I might I don't believe in fairies.
5
I'm surprised that Ms. Greenhouse didn't discuss Gamble vs. U.S. which has some interesting issues. In that case the court upheld 170 years of precedent that allows the federal government and state governments to prosecute an individual for the same crime. The decision was 7-2 and based on the separate sovereign status of states.
The dissenters - Neil Gorsuch and Ruth Bader Ginsburg - were willing to overturn precedent by claiming that the Constitution's prohibition on double jeopardy prevented such prosecutions. Note the impact this has for New York's prosecution of Paul Manafort.
I'm guessing Ms. Greenhouse didn't discuss this case because it didn't fit her narrative.
4
@J. Waddell
How does it not fit the narrative? 7 justices voted to invoke Stare Decisis for a 170 year old precedent. There's no safer decision than that, generally.
I didn't read the dissents but I'd guess RBG and Gorsuch had diametrically opposite reasoning.
6
@J. Waddell: In Gamble, there were very good arguments that the precedents supporting the "separate sovereigns doctrine" were unsound. You should read the briefs.
And just fyi: It has been the formal policy of DOJ for a long time not to prosecute defendants for a crime that has already been prosecuted by a state in the absence of compelling federal interests. It's called the Petite policy. DOJ prosecutors just routinely ignore the policy when it suits them. No such policy binds states.
I'm not sure what you mean by your Manafort comment. A decision for the defendant in Gamble might have helped him, but maybe not if the state crimes are of a different nature than his federal crimes. In any event, one liberal justice and one conservative justice voted for the defendant in Gamble. So I can't see any political motive there. In criminal cases, the justices often split along philosophical, as opposed to political, lines. Ginsburg, for example, sometimes splits with Breyer in criminal cases because she's more of a formalist (along the lines of a Scalia) than he is.
1
The Court saving itself and the Court saving the Republican party from the consequences of that party being out of step with voters and how that effects the 2020 election, are not the same things.
4
Iran excellent piece. I’ve argued exactly the same thing since the new revelations came to light on the census citizenship question. Chief Justice Roberts is a political animal, as are Trump picks Gorsuch and Kavanaugh. They know a political stinker when they see one.
Of course, we all may be wrong and the 5 right wingers may see this case as a way to cement GOP minority rule for a decade and are willing to take flack for it. We will find out in the next 10 days.
9
"Originalist" Justices of the Republican stripe can't find the right words in the Constitution to justify their decisions in American English language and meanings that would make sense in the 21st Century.
Stuck with what the men of the Enlightenment Age believed they knew about human history (to that point), the gun technology of that day, and the predominantly rural and illiterate population of that day, they created a document with a plan for government that has been amended more than a dozen times.
Based on their knowledge at that time they wrote that slaves could have no vote but were still counted as 3/5ths of white men for the purpose of the census, giving political power and representation to slaveowners beyond their numbers.
Members of the Senate were not chosen by direct election but by the vote of their state legislatures, who presumably could read well enough to understand the laws they were writing.
Political parties had no Constitutional roles and the Federalist Papers warned against factions.
With so much left unwritten, science of the day relatively primitive, the population overwhelmingly rural and dedicated to agriculture, statistics unknown (a problem that persists in the current Supreme Court), it is no wonder that they don't know how to make correct judgements for the American people living in the 21st Century.
Why bring them cases that they must decide? Who are these people seeking "Justice?" What has the law got to do with Justice anyway?
5
@JMT
They also never IMAGINED that a President would abuse the power of the pardon the way that Trump has done, particularly offering it as a quid pro quo for witnesses facing prison to keep silent, or even lie.
They never IMAGINED a President would even CONCEIVE of pardoning himself in advance of his leaving office.
After all, when they imagined a President, they looked up at the Chair of the Constitutional Convention and saw the man they all knew would be the first: George Washington.
Nor did they IMAGINE that a President during his time in office was above the Law. 2 Presidents were arrested in office, Franklin Pierce and Ulysses S. Grant, and neither contested the right of law enforcement to arrest them. Grant didn't even contest the charges, merely paid a $20 bond (when a $20 gold Double Eagle was worth $20. Now its gold content alone is worth $1300--that was Grant's fine in 2019 dollars).
Also, the founders, by NOT allowing for "factions" inadvertently guaranteed a 2-party system, making it extremely difficult for 3rd parties to arise. Since the institution of the Republican Party out of the ashes of the Whigs, only 3 (AFAIK) 3rd parties actually won Electoral votes, with TR in 1912, Strom Thurmond in 1948, and George Wallace in 1968. And they, and others were all eventually absorbed into the GOP or the Dems--or vanished.
5
USSC isn’t a legal institution, it is a political institution. We saw evidence of this when Roberts abruptly abandoned the effort to torpedo the ACA and voted with the liberal wing to preserve it. We know he had already drafted an opinion against it. His decision was not based on any constitutional considerations, it was simply a strategic calculation around the optics of nullifying a signature legislative initiative of a Democrat administration. In attempting not to appear political, he acted from purely political motivations.
11
@Xoxarle...
We've seen evidence that the Supreme Court is a political institution ever since the Constitution was signed in 1787.
It was designed to be a political institution, the most conservative (dictionary definition) of the three co-equal branches of the government. Its role to keep the country, and its laws, grounded in the political thinking of a consistent past, precluding the types of draconian swings in the interpretation of law that the democratic process can often impose for patently partisan purposes.
Anyone who is unwilling or unable to see and accept that is deficient in their understanding of our Constitution, its institutions, and the processes by which our federal government operates.
1
The census case could have some interesting ramifications. Should the justices look at the letter of the law, which gives the Commerce Secretary wide discretion over what questions to put in the census, or can "intent" be used to decide the case?
The flip side to this is that the letter of the law clearly allows Congress to request any tax return they want - including the President's, but the intent of the Democrats in Congress is clearly political. Whichever way the Court decides in the census case should be carried over to the president's tax returns when that case likely gets to the Court.
2
@J. Waddell...
The problem is that while the Commerce Secretary's options with the census are governed by the Constitution, the tax return question is governed by two conflicting statutes. Which of the two takes precedence? The Congress knew full well of the existence of the law against providing tax returns and chose not to revise that statute in the one that allowed them access to returns...
Poor Congress...Shoots themselves in the foot again.
Scotus is a political machine that is running off the rails. Long over due for a fix. It’s like playing the same record with out a needle. It just goes round and round.
5
"(But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.) "
Nothing speaks better to the bubble that Linda and her friends in the echo chamber here live in than this quote from her article. Perhaps such "backlash" may never materialize - hence her need to create one. Or perhaps the "backlash" may go in the opposite direction.
There are legitimate arguments on both sides of the religious freedom case, support for abortion differs substantially depending upon which trimester one is talking about, and on the census case, the addition of a citizenship question won't prevent anyone from answering the census if they are so inclined (notwithstanding the case is really about the power and limits of such power of the executive branch).
It seems to me Linda is really the one who is inserting politics into the legal issues. Hopefully, the Justices resist her call and make decisions based on their interpretation of the law.
4
As to the census, you've just disagreed with scores of social scientists, Census experts, and the Republican operatives and Trump-Ross who know that adding the question will suppress responding, especially among minorities, and, thus, lead to major undercounts in Democratic areas of the country.
Furthermore, those so-called plausible rationales for discriminating against gays and banning abortion are little more than religious excuses to abrogate people's basic human rights and civil liberties. If you are running a business that serves the public, you must serve everyone, regardless of their national origin, race, sexual orientation, and religion. If you are imposing your religious dictates on women to control their bodies, you are perpetuating patriarchy and even misogyny as you force women to be submissive to other people's religious dictates, largely those of white male, archconservative, fundamentalist legislatures!
7
@Mike C. The history of The Court is really on Ms. Greenhouse's side, Mr. C. How the Court interprets the law depends on the bias of each Justice.
When the decision is in accord with a prejudice, it is seen as fair, when it goes against that prejudice it is seen as being due to activist Justices.
Or, as the old saw has it, it depends on whose ox is being gored.
3
To me this article speaks to the paralysis of our federal government.
We can't get anything done according to Hoyle and haven't been able to since Obama was elected and then obstructed by Congress.
The framers of the Constitution created a system for running the government where bills would be passed by Congress and signed by the president and their constitutionality could be reviewed by the Supreme Court.
No bills are being passed by Congress, the President acts by executive orders or just hubris - I'm going to do this and you're going to have to stop me - and the Supreme Court is taking a powder when faced with cases that are politically
controversial.
The electorate has to step up in 2020 and vote in major change. Tweaking things to undo some of Trump's damage and returning us to status quo ante won't cut it.
34
@Jim Hugenschmidt
The founding fathers had the expectation that men of integrity would be manning our political offices. That is not the case.
1
As always, Linda Greenhouse has no peers in analyzing the machinations of the Supreme Court.
And I do hope she's right about the possibility of the Court granting a DIG in the Census case. In particular, Chief Justice Roberts may be wary, given the recent revelations, of going through with a decision that might well boomerang on both the Court's legitimacy and the 2020 elections.
But the sad truth is that if that's the thought process, it's basically a tacit admission that the Court has become an arm of the conservative Republican coalition rather than an independent entity. One would hope that Roberts (and others) would be discomforted by that, but evidence of that is still inconclusive.
42
@Glenn Ribotsky
Not only does she have no peers but she should have a chair in teaching of expository writing. I so look forward to her columns for the clarity and logic of her reasoning (not a tautology these days).
1
The Justice Department explained the reasons it wants the citizenship question reinstated on the 2020 Census questionnaire in a four-page letter to the Census Bureau. The letter explains in convincing detail why the Justice Department needs “citizen voting-age population data” to enforce the Voting Rights Act. (The reason is that the Supreme Court has ruled that states must use the number of voting-age citizens when drawing districts than ensure Hispanic voters outnumber non-Hispanic white voters.)
The letter is online athttps://www.documentcloud.org/documents/4340651-Text-of-Dec-2017-DOJ-letter-to-Census.html
It is true that that citizenship data could be used for many other purposes. For example, states could use the data to draw voting district maps that reflect the number of citizens eligible to vote. The data could also could be used to apportion state representation in the House of Representatives and Electoral College. The citizenship question will also inform federal and state agencies how many resident are eligible or will become eligible for federal and states benefits and programs
But these additional benefits do not make the Justice Department’s request to reinstate the citizenship question invalid. They just provide additional valid reasons for asking the citizenship question.
3
@William Case you would be correct in laying out the Justice Dept's role in ensuring the voting rights act, if it wasn't for those pesky truths that the request was made by the commerce secretary to tilt districts to the GOP and the reason the Justice Dept gave was made to fit a purely political move.
6
@William Case you would be correct in laying out the Justice Dept's role in ensuring the voting rights act, if it wasn't for those pesky truths that the request was made by the commerce secretary to tilt districts to the GOP and the reason the Justice Dept gave was made to fit a purely political move.
The memo was a bald-faced lie. The census question was to augment the power of Republicans by diminishing the voting power of non-white voters. And with the discovery of documents that should have already been discovered, this will come to light.
7
At least for now, by some recent rulings, Roberts does not want to see his court as a Dred Scott court or separate but equal court.
However neither does he want to be seen as an Earl Warren Court.
The present court will definitely be more conservative but it is signaling it will not toss out Roe or gay rights or possibly some other liberal decisions but will make them more towards the center.
2
Essentially, the Supreme Court is admitting it is a politically partisan branch of the federal government. As such, Americans deserve no less than that the members be either limited to one term (length of which yet to be established) or subject to the judgment of the the voters.
57
@Glen...
It is, and always has been, a political branch of the government ever since the Constitution was ratified in 1787.
To think otherwise is to believe in the fairy tales you were taught by people who didn't have a clue as to the actual nature of our governance.
The Supreme Court is the "least political" of our institutions by virtue of the life-tenure appointment of judges. But by being staffed by nominees of a duly elected President and confirmed by a duly elected Senate, the members of the Judiciary, including the Supreme Court, are patently political operatives.
If one wants to see this playing out, one need only to look at the appointment of state judges throughout the land...those who make regular and sizable contributions to the political campaigns of governors get appoints to the bench; those that do not never get them.
5
There is another option. The Court could simply uphold Judge Furman's opinion without reference to the new evidence. Block the citizenship question without considering new discovery. I would consider the outcome highly unlikely. Much more unlikely than a DIG.
If we're considering all our options though, we need to consider there is already enough evidence to prove the administration's arguments were pretextual even without the Hofeller documents. Certain Justices were simply choosing not to see it. That position is a lot harder to maintain now with the Hofeller information available to the public. Better to surrender with a DIG than face open defeat with a ruling.
5
@Andy...
There is nothing in the Constitution to prohibit the Executive from making a "contextual" decision as long as it carries out the directives of that document.
If the Dems control both houses of Congress and the White House after the 2020 election, make revamping the court the top priority. Expand it, pack it, restructure it - there are many ways to adjust it, but once the GOP cancelled the normal presidential appointment process, all bets are off. No more allowing a right wing activist cabal to dictate policy through judicial review.
38
@GM
What's wrong with having a right wing cabal dictating policy through judicial review? For decades we've had a left wing cabal dictating policy through judicial review.
2
@J. Waddell: Your point is indefensible, as you reveal, and in error. But an improper wrong has no business repairing propriety.
2
@J. Waddell: Your point is indefensible, as you reveal, and in error. But an improper wrong has no business repairing propriety.
1
The court could have clarified that the fine is excessive and cruel and that any fines imposed cannot exceed the average value of the disputed item produced in that shop.
Hardly worth a major court fight and that would force the parties to address their grievances like grownups.
We have more important things to worry about.
Climate change comes to mind.
Forget wedding cakes, please!
12
I love what Ms. Greenhouse has done here. She has taken partisanship from the conservative justices and turned it to show that the court should not support the citizenship question, which is a conservative goal.
On another note, I am appalled that the Court is so easily shown to be partisan and that the Court does not understand how it left Masterpiece as essentially a non-decision. The right-wing justices, save Roberts, are simply an embarrassment.
46
@Anthony
Roberts has yet to fully show he deserves exception from your judgment of the precipitously right-leaning membership of the Court.
3
@Glen You're probably right but I don't think Roberts is quite at the level of "embarrassment."
I wonder what to think, is this wishful thinking or has the author good intelligence that the Court will 'dig' the Census question case. I am not so sure that the latter is necessary. A decision in favour of the Commerce department may not make a lot of waves prior to the 2020 election which would hurt the Republican ticket. The Census Bureau cannot release individualised data. If the SC verdict is favourable to Ross c.s. the logical thing for the Census Bureau would be to more forcefully communicate that the bureau won't release individual data (as this would be unlawful).
What Ross c.s. would perhaps settle for, and could be provided with by the Census Bureau, is total numbers of non-citizens. Question is whether legal non-citizen residents could be separately accounted for. Areas for which this can be done without the risk of de-anonymization should be large enough to make those numbers statistically significant.
Whether those numbers could be used 'in support of the Voting Rights Act' is doubtful.
The certain outcome, no matter what, is a larger non-response among non-whites of any origin, i.e. among Democratic voters in the main, because of the publicity around the question. That is beneficial to the GOP, for the allocation of federal funding and more. It really is a case of heads I win, tails you lose.
The SC justices on the right, aware that Trump will not accept an unfavourable election outcome, claiming voter fraud, might want to avoid blame they didn't act.
1
As you have noted in prior columns, the census case presents unique problems. SCOTUS can only support the Administration's position if it blatantly elects to ignore clear evidence, something it is generally loathe to do. It would be virtually impossible to render a decision on a legal issue in the case without appearing to be openly political. I doubt it will sidestep the case. I submit the decision will reveal much about the future of this Court.
19
A DIG on the census case would not be a punt, because the case will never return to the Court. The proper football analogy would be just to take a knee and let the clock run down.
And, as I learned long ago in a management course, not making a decision is, of course, making a decision. Taking the citizenship question off the census may well tip the scales of reapportionment toward the Democrats.
However, I say "may" for a reason. The publicity over the proposed question, the promise of the administration to deport millions, and the general tone in this country has probably worked to suppress responses from those who are or are related to undocumented persons. So the administration just might have achieved its goal even if the Court disallows the poison pill question.
18
The fear has become a reality that the Judicial Branch has any semblance to actual Justice. Too many Justices were nominated only by their adherence to the Federalist doctrine. That said, they fully understand what their path is and will "rule" accordingly.
Unfortunately, we will get many more decisions like the baker, where logic and justice is bent like a pretzel to achieve their ruling.
31
The Court is and always has been political, at least in the sense that it has to try to maintain its moral authority with the public. The Court does not have its own army, and to be effective it can only push the public/political boundaries so far. The law is not a rigid set of rules that can be applied mechanically.
Sometimes this leads to disaster for the nation and the law itself, as with Hirabayashi in the 20th Century or Dred Scot in the 19th. Sometimes it leads to an attempt to save us from our checkered past, as in Brown v. Board of Education in 1954–a case that the Court put off for a year to make a unanimous ruling against school segregation possible.
Punting on the census case would go a long way toward saving us from our worse selves at present.
20
@SA
Actually, upholding the lower courts on the Census question (i.e. forbidding the inclusion of the citizenship question on the 2020 Census) would go much further toward saving us from our worse selves.
I realize the Roberts thinks he is living in a pre-13th Amendment United States, but he can't go on forever pretending he doesn't "understand" the intent or impact of the numerous vote suppression tactics deployed by republicans.
He's already circling the drain with Taney as the worst Chief Justice in U.S. history. He's only steps away from snatching the title exclusively.
In stating "my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party" the inescapable conclusion is that the 5 current right-wing justices are nothing but GOP yes-men, right-wing politicians in robes, deliberately refraining from exercising the unconstitutional activist role for which they were selected by Mitch McConnell, the Federalist Society, and Trump.
The 5 Justices will resume acting as a super-legislature once Trump and the GOP are free of any consequences from the right-wing authoritarianism which defines them.
We now have a governmental and political system which has made individual freedom completely subordinate to the power and authority of the state. Trump is just a figurehead, actual control/power rest with McConnell, and a small group, The GOP, which are not constitutionally accountable to the people. It's the very definition of Authoritarianism. A nationalist racist figurehead adored by about 40 percent of the electorate allows McConnell, the true authoritarian leader, to advance his agenda. It's why Trump is never held accountable for anything, whether crimes or blatant constitutional violations.
The final piece in this authoritarian regime consolidating power rests with 5 authoritarians now controlling the Supreme Court. Little wonder they decided not take the chance of democracy ruining it all in 2020.
168
@Robert B
Not just authoritarian, but religious authoritarianism. Separation of church and state is pretty much hanging by a thread. Sounds dramatic, I know, but ......
13
@LS
What you describe is a Theocracy. In a Theocracy God or a deity is the one and only supreme Civil Ruler. It directly violates the US Constitution. It's why the GOP is destroying the US Constitution and its requirement of a separation of church and state. However, Trump and the GOP don't actually fit into that single category. They embody authoritarianism in all right-wing forms.
Christian Evangelicals and other radical Christians are Theocrats. Those in the GOP like Trump and Mitch McConnell align with Theocrats but are Plutocrats, authoritarians destroying the Constitution and representative government so that a small group of the wealthiest (meaning them) have all the power.
The Trumps, as well as those like Elaine Chao, McConnell's wife, also run America as a Kleptocracy; a government of corrupt leaders who destroy the rule of law and use their power to exploit the American people and our natural resources in order to increase their personal wealth and political power.
Typically you have a Theocracy, a Plutocracy, or a Kleptocracy, not all of them as they're actually very different. However, in Trump and the GOP America has all of them as American authoritarians realized this was the way for all of them to achieve what they want. Trump and the GOP can meld together all of these forms of Authoritarianism as they all have one thing in common, a pathological hatred of liberal democracy, of civil (as opposed to religious) law, and of representative government.
8
At some point it will be necessary to resolve the conflict between democratically-enacted governmental laws individually espoused religious laws.
It’s worth noting that no religion is common to more than about 30% of the world, that they vary from person to person, and that they often conflict with each other. Religious laws can be as outrageous as child sacrifice or vaccine rejection (sometimes the same thing). How they can ever be logically squared with evidence-based secular laws is a mystery. We are likely to end up with illogical lines between recognized and personal religious beliefs, and with court-determined rules about the seriousness of a conflict.
26
Is not the census case qualitatively different from abortion/women’s choice related cases? Public opinion seems to favor some sort of border security. The Court’s deciding the case in favor or republicans might garner favor for both Trump and itself. The same is not likely true of abortion/choice cases, where public opinion seems to be on the other side. This reasoning suggests that this political court will take up the census case.
1
I always enjoy your analysis. Here, however, I'm not quite sure how to process your presentation. Are you saying that the Court knows how to hide its political commitments and does so, but only when it might trigger political blowback? Is the Court is duping the citizenry?
I think that you are right if that is the case you are making. Thinking about that brings us up against a picture of sneakiness--always a tell of guilt. The Court knows it is doing wrong, or what the public would see as wrong, so will only do said wrong when they can get away with it, or at least when the forthright, robeless Republican politicians won't pay a price at the ballot box.
Terrible.
64
When a DIG is used in order not to assess, this decision is noted. Information is created. A legal tradition has been created and sustained that no justification is needed. Understanding, on the other hand-WHY-is always needed in a democracy, if the decision is not to be considered as being arbitrary, as well as being a learning opportunity to better judicial processes and outcomes. The opportunity to “Fail better” each time is seriously challenged when DIG, as undelineated information, is enabled, and undocumented discussions between life-time appointed Justices is the norm. The extent to which creators of the Constitution,THEN, concerned themselves with the inherent differences between a “right to know,” a “right to understand,” opaqueness and transparency in judicial decision making may be topics for academic study. What does each person in the USA need to both know and understand about the legal processes and outcomes which affect daily,equitable, wellbeing for individuals and our complex institutional systems, in all areas of daily functioning, adapting and coping?How DIG is handled, with its complex implications and outcomes, merits digging deeper and broader, particularly in our daily enabled WE-THEY violating culture, in a divided nation of diverse Peoples and personally unaccountable policymakers. At all levels. All over.
Implicit in this analysis (insightful as always) is the concern Roberts may have for his own legacy and that of his court. Being viewed in history as flunkies for the Republican Party is not a good look and he is wise to steer a non-partisan, based on the rule of law course during this administration. After 2020, he would be wise do the same since any action that is overtly partisan under an Democrat administration would also be legacy and reputation destroying. Roberts may be a Republican but he first and foremost a jurist and jurists are nonpartisan.
8
@ND
"Jurists are nonpartisan"?
Your statement is inoperative at least as of the time that Kavanaugh stepped up to the Court.
I believe that the Court as a body, and certainly Roberts, know full well the potential damage to its reputation and historical standing the Roberts Court faces.
Look for more signs of the Chief Justice holding his nose and casting moderate votes. His legacy and place in history trump ∂∆indebtedness to his Conservative Right sponsors.
20
Neither the Supreme Court nor Congress have an army. So, our ultimate direction (in both senses of the word) is clear.
@Rethinking Congress and no one else is the military's paymaster and recruiter. The Executive has command over Congress's military for reasons of practicality, though the Congress could constrain the Executive's use of the military.
3
@Rethinking Soquelly: under law what you say is true. But in fact the Executive can (and has) allocated funds for purposes not sanctioned by Congress (not to mention has been waging wars for decades that are not sanctioned by Congress); and revenue is actually raised by the Treasury Dep't under the Executive. So we've been heading down a lawless path for decades, and the trail is descending to the bottom of the mountain faster and faster.
2
Don't forget who pays the army.
Linda Greenhouse's penetrating analysis performs the same function as the questions posed by the justices during oral argument: seeking not so much an answer as telegraphing a position. Hopefully, the Chief Justice will join the four liberal members of the Court in issuing the DIG.
30
As always Ms. Greenhouse analyzes the SCOTUS's decisions and non-decisions and explains it in the most clear manner.
This analysis leaves no doubts that the SCOTUS is a politically motivated institution and CJ Roberts has vested interests in maintaining his and the institution's legacy.
I can only hope that under his shrewd stewardship and with a dose of common sense the SCOTUS will come to sensible decisions.
101
@chickenlover: In the event that CJ Roberts has vested interests “in maintaining his and the institution's legacy,” subjective words meaning whatever a writer wishes and not affecting what the Chief Justice and fellows hand down, and the Chief Justice is shrewd and interested in stewardship, sensible decisions may not result. The institution’s legacy is Politics, emphatically intended by the we-praise-the-Lord-and-His-Servant Trump-McConnell Party. Occasional sensible decisions when the Court desires and political decisions at other times contribute to tearing apart the house. A dose of common sense can belay a headache but leave the disease rip-roaring. It is fairly said that SCOTUS is a politically motivated institution, so hopers have only hope. The Court’s legacy is inevitable, with or without sensible decisions designed to grease the slope.
1
But can the Court "punt" on whether the IRS has to turn over the President's tax returns to Congress (the law specifically says it must), or on the issue of the "complete and total immunity from testifying" the Administration is claiming for members and former members of both the Administration and the Trump campaigns?
This Court will soon be deciding whether the rule of law continues to exist in the United States, on whether Congress is a co-equal branch of government with the Presidency, perhaps, in November 2020, on whether the results of an election can be challenged by the losing candidate. How will they avoid deciding then?
225
@Legion. Can the President demand documents from members of the House and Senate? That doesn’t seem to be the case. So co-equal only gets you so far.
1
@Thomas Smith
Not only does congress have the right of executive oversight, they have a constitutional duty to do so...not the other way round.
37
@Legion
If the lower courts decide in favor of Congress, the effect of SCOTUS "punting" is to leave the lower court decision in place.
By Ms. Greenhouse's logic, that SCOTUS does not want to create a firestorm before the 2020 election, a decision that overturns long-held positions, such as Congress's power to investigate and to subpoena evidence and testimony, would be unlikely.
SCOTUS decided 8-0 that Nixon had to turn over the Watergate tapes, for example. On that basis, Trump and his adminstration should be obliged to honor Congressional subpoenas.
14
I am struck with just how out of touch the present line up of justices are from the lives of everyday people. The two latest prep boys know nothing personally of how the courts affect the lives of the poor and marginalized. While most reporting on our justice system features the issues of the wealthy and powerful little is said about the many encounters those who live from pay check to pay check have with the law - all the way from divorce and custody issues to driving without a license, bar brawls, drug use, etc. to claim that there is equal justice under the law in this country is a farce.
87
@anselm
Those two prep boys know exactly how the courts affect the lives of the marginalized, the poor, and everyone else. They just don't care unless it enriches wealthy conservative interests.
21
@anselm
Very good point. One of the multitude of Democratic Party candidates should run "against" the present SCOTUS as part of their campaign. Are you listening Bernie Sanders or Joe Biden?
1
"The two latest prep boys know nothing personally of how the courts affect the lives of the poor and marginalized."
Oh, they know. They just don't care how their politics affect the poor and powerless. They are the Entitled.
4
With hope, at least one moderator for each of the Democratic presidential primary debates will elegantly ask about the census citizenship question.
The more the public is helped to understand the implications, the more difficult it will be for the Supreme Court conservatives to chant, "Can't hear you, can't hear you..." with hands pressed on ears.
92
GORSUCH. CAVANAUGH and the Federalist Society, not withstanding the Roberts Court will not let the Right make it the battlefield for a new civil war fought to freeze the Trump victory into a new status of ideological forces. after all, the Trump victory was not that conclusive.
7
In fact, Trump lost on the popular vote. Hillary had a few million more votes.
3
I always enjoy Ms. Greenhouse's insights.
Maybe I am naïve but I keep hoping that the justices might rule based on the facts of the case, the law, and precedent. For one thing, the decisions of a court such as the U. S. Supreme Court go into the history books (at least quite a few do). I think that I would want to support ruling that will make sense 10 or 50 years from now. Even if that means that I don't get invited to Federalist Society do's.
But Ms. Greenhouse is probably correct that republican justices are making political calculations.
73
Usually Ms. Greenhouse gives us insights into the intricacies of law and precedence. Sometimes she explains judicial philosophies and how individual justices apply them. I appreciate this particular column describing the political calculations that actually form the basis for rulings (or the lack of them). The desired outcome is determined, and the ruling must be drawn to reflect it. I appreciate this insight a much as I am depressed by it.
292