Home » Trump, Chief Justice Roberts, and the flap over the political partisanship of judges

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Trump, Chief Justice Roberts, and the flap over the political partisanship of judges — 46 Comments

  1. Scalia warned them that, when judges start acting like politicians, they will be treated like politicians.

    Roberts is wrong and there has been speculation, which I also wonder about, if Obama had something on Roberts when he switched his position on Obamacare and the “tax” thing. His adopted kids, for example.

    Let’s remember that Hugo Black, a former Klansman, ruled that Lyndon Johnson’s theft of the 1948 Senate election was legal at the instigation of Abe Fortas who Johnson rewarded by naming him to the Court. The story is in Caro’s biography of Johnson. “Means of Ascent.” Pages 378 to 381.

    Roberts has chosen the TDS side.

  2. I’m a recent law school grad, at age 41. I went to law school as a sort of second career choice after a good stint in the military. I find myself cringing at seeing Pres. Trump and Chief Justice Roberts jousting in this way.

    My law school was overwhelmingly to the Left. I took a jurisprudence course and we spent an ungodly amount of time delving into the critical legal studies section. Many of these legal philosophy arguments are fundamentally insoluble. At root, what you choose to put faith in is your preferred metaphysics of How the World Works.

    Roberts is a thorough establishment guy. He feels, it seems (and I could be wrong, to be charitable to Roberts, that the institution of SCOTUS, as institution, is more important than the Constitution, as a constitution.

    That being said, despite myself being very far to the right, I think there is some truth to be found in at least some of the tenets of the Legal Crit dogma. I think that over the many decades, judges have evolved this notion that they are “above the fray” when I don’t see that being a logical option. They’ve always been in the fray. See Marbury v. Madison. The animus between cousin Thomas Jefferson and cousin John Marshall was real and ugly.

    Personal note: the day after the 2016 election, I showed up on campus because I needed to let my Constitutional law professor know that I wouldn’t be in class the next day because I had a prior personal commitment I needed to keep. I found him, in his office, lying on his couch, weeping. The atmosphere at the law school felt like a wake. It was as if someone named Hillary had literally died.

    Legal studies have been politicized for ages. At least since the 1980s. By that time, Roberts was already clerking for Chief Justice Rehnquist.

    It’s all political turtles, all the way down.

  3. Michael Towns:

    Indeed, the reality is as Sancho Trump has described. The question, though, is whether impartiality is something for which to strive—a goal that will never be perfectly achieved but which should be a goal nevertheless—or whether it’s something best discarded because it’s all about power anyway and that’s just fine.

  4. Michael: In his office, weeping?!?
    Do they allow only castrati to become law profs at your school?
    Roberts is guilty of a BS statement. He might have revised it to say, “There should be no Obama judges or judges of any partisan stripe, though we are all human and therefore inclined to error.”
    And addressed possible mechanisms of rectification.
    I personally do not think Roberts is extremely intelligent. This remark of his proves that. I am inclined to believe he was professionally what we used to call a “brown-noser” and so made his way up the ladder.

  5. The Ken Starr book is interesting. I sent a copy to my daughter, who is a lefty and an FBI agent but she told me in September 2016 the she would NOT vote for Hillary. That suggested to me that the FBI grapevine knew Comey was trying to head off an agent revolt when he gave his press conference the summer of 2016.

    It has a lot about how to investigate financial crimes and that is an area she is interested in.

  6. We were assured by the messiah and the msm that the ACA was not a tax. Roberts in a 5-4 decision said it was a tax and therefore Constitutionally valid. Roberts ruled at his masters wish. It is painfully obvious that judges rule based on their personal ideology. To pretend otherwise is absurd.

  7. It is painfully obvious that judges rule based on their personal ideology.

    That ruling seemed to be contrary to Roberts’ political philosophy, which is why I wonder if they have something on him.

    Maybe he was just afraid of crossing Obama after that nasty SoU speech.

  8. “The question, though, is whether impartiality is something for which to strive—a goal that will never be perfectly achieved but which should be a goal nevertheless—or whether it’s something best discarded because it’s all about power anyway and that’s just fine.”

    Neo, this is indeed the $50 gold question. I look at it this way: lack of a bias is itself, a bias. Therefore, in my humble opinion, attempts to be “impartial” inevitably and ineluctably fail.

    With respect to federal judges, they should indeed have a “partiality” — it’s called the Constitution, a document that they solemnly swear to uphold. Of course, we can have honest disagreements about what specific articles and clauses of the Constitution mean fundamentally (does “Commerce Clause” include any economic activity or is it more restricted?). But at least we’re actually delving into the Constitution and taking it seriously.

    I tend to the view that’s always about power and always has been. The very doctrine and concept of power and the sovereign was what kept the Founders up late at night writing letters and essays. They were obsessed with what power was and how best to attenuate it without devolving into anarchy.

    I suppose I’m weird: I’m a conservative who leans libertarian on economics and I rejoiced when Gorsuch was nominated. But I have a hardcore realist streak in me that has no problem holding the Constitution as a sacred document and a very political one as well. I really do believe it’s all about the power. I respectfully disagree with the Chief Justice and part of me wonders if his extraordinary press release is just him doing his part of the Kabuki theater that performs 24/7 in Washington DC.

  9. Roberts continues to demonstrate his intellectual dishonesty. He has to know that activist judges, i.e. “Obama judges” are as common as drug addicts in San Francisco.

    When the simple truth is denied in a futile attempt to protect his profession, he has abandoned truth in support of falsehood.

    His prior ruling on ObamaCare and now, his denial of the undeniable, demonstrates his unfitness for the office he holds.

    Had he any honor, he’d resign but had he any honor he never would have acted as he did and now, ‘doubles down’ with a lie. ( lie: to knowingly tell an untruth)

    Can a jurist render any greater disservice to the public than to lie?

  10. When I read Sotomayer’s comment about the virtues of a “wise Latina,” I was moved to ask: Maybe, but what about a stupid Latina? She made a racist remark then wrapped herself in self-righteousness.

    I’m fed up with all the anti-white racism around us. I thought that the reason racism was bad was because it was wrong, not just that the wrong ox was being gored.

    That Obamacare decision has puzzled me for a long time. The bill was passed on the express declaration that the mandate was not a tax. Then Roberts declares that it is a tax so as to avoid having to decide against the Administration. But if it is a bill establishing a new tax, doesn’t that make it a revenue bill? It seems to me that Roberts’ decision turned it into a revenue bill, which must originate in the House of Representatives. Obamacare originated in the Senate, so it seemed to me unconstitutional for that reason. It had an HR number, but only because the Dems gutted another bill and put in Obamacare as a 2000+ page amendment. If that is enough to claim that the bill “originated in the House” then the Senate could originate every revenue bill by the same cynical move.

    Obama spent eight years stamping on the Constitution, and five Supreme Court Justices helped him get away with his unconstitutional behavior.

  11. If all federal jurists are unbiased and merely following the law, then why are the confirmation processes so bitter and political? As Neo says, any sentient being who has paid attention knows that judges have political leanings (one of the most obvious is the abortion issue) and those are plumbed at some depth during confirmation – the Kavanaugh hearings are a prime example. Trump is merely stating the obvious.

    Chief Justice Roberts is a member of the Washington establishment. To him, appearances and niceties are important. Like most Washington elites he decries Trump’s vulgarity and felt the need to score one for his team. Nice try, but now he has learned that Trump is not impressed with the Washington elite’s game.

  12. I’m fed up with all the anti-white racism around us. I thought that the reason racism was bad was because it was wrong, not just that the wrong ox was being gored.

    The war on whites is a corollary of the war on merit. The Engineering schools are being dragged into line with “diversity and inclusion.”

    Affirmative Action has led to massive failure of black and Hispanic kids in schools they are not prepared for. People are not equal except in opportunity. That cannot be admitted.

    South Africa is about to run one more experiment to see if civilization is the default state of society. Zimbabwe was not conclusive,

  13. Trump speaks the truth and the fainting goats do their thing and sing their refrain. It is sad that the Chief Justice joins in the chorus.

    Better that the CJ speak to his community about the need to respect the constitution and observe judicial restraint. Sadly, he seems to have been coopted by the environment in which he dwells; an environment which is very remote from the rest of the country, and the founding principles.

    I don’t understand why there would even be a discussion about the need for impartiality among Judges.

    In my humble opinion, which is humbly right on target, we are very close to a totalitarian environment under the heel of life-time Judicial appointees who are accountable to no one. It is painfully obvious that too many of these self proclaimed arbiters of society have no respect what so ever for the constitution they swore to uphold.

    The quote from Justice Scalia is most apt. Which suggests that we need an amendment to the constitution, or applicable law, that would make all Judges answerable to the electorate.

  14. Turley has a piece on Roberts and Trump.

    He complains about Trump, as is necessary for those in DC, but he points out that Roberts does nothing to rebuke his own court for its political statements.

    For example, in 2010, Justice Samuel Alito was shown at a State of the Union address, shaking his head and mouthing “Not true,” in response to President Barack Obama’s criticism of the Citizens United ruling on corporate campaign finance limits. Obama was out of line in his portrayal of the ruling — but he’s a politician. Some of us immediately denounced Alito’s conduct in breaking a longstanding tradition of justices remaining silent and neutral at such addresses. It was a serious violation of both protocol and principle. I wrote at the time that it was incumbent on Roberts, as head of the Supreme Court, to repudiate Alito’s conduct.

    Naturally, he goes after Alito first.

    The comments are the usual in a lefty site like The Hill.

  15. “longstanding tradition of justices remaining silent and neutral at such addresses. ”

    True as a matter of history, but this tradition or informal rule assumes the President will, in his speech, refrain from direct attacks on the Justice’s integrity.

    Alito was not out of line, and were it not for the cameras zooming in on him when Obama made his attack, no one would have known.

  16. Well…if the proof is in the pudding…Let’s see the strum und drang when RBG shuffles off this mortal coil here in 2019…my prediction based on nothing but conjecture, her age, and her recent fall/injury.

    Or if President Trump gets to add another thumbprint to the court’s makeup besides the 2 he’s already put on the bench.

    I wonder if at that point the “surely-not-Obama-judges” themselves will start to weigh in on the replacement. Maybe the “wise Latina” might have a thought or the Chief himself again.

  17. Just the press stirring up another Trump “controversy” and everyone falling for it….again

  18. There is the same bait-and-switch that is used on journalists. Because they are supposed to be as objective as possible, given the human limitations we all have, to accuse them of being seriously biased is regarded by liberals as conservatives’ inability to perceive justice and evenhandedness. As in this article from Columbia Journalism Review linked by Insty. https://www.cjr.org/first_person/republicans-media.php . They believe that conservatives are therefore advocating that journalism or the judiciary should be political, in a conservative direction. Those right-wingers just can’t accept reality, y’know? Pure projection.

    Understood this way, it shows how far down the road they are, how lacking in insight. It is not that they are so far left that they cannot perceive where the center is – some of them are not that far left. It is a personal characteristic, and I think a moral failing, to be unable to stand back from oneself and even consider the possibility that one is wrong. Or more properly with liberals, that their group might be wrong, as they are so held captive by the social pressure of their particular brand of leftism.

    I have had two major course changes in my thought in my lifetime, and many smaller ones. All were painful. I think this avoidance of pain is what perpetuates liberalism – at some level they know that they will not only have to admit they were wrong, but admit that they have done damage*, and finally, may be cast into the outer darkness by their friends.

    The journey out of liberalism is not primarily intellectual, but personal and social. They change beliefs all the time, according to the fashion (such as Hillary and immigration). But they cannot face changing tribes.

    *Similar to the refusal of obstetricians to accept Semmelweis’s germ theory and the need to wash their hands between deliveries. The need to keep future patients alive was swamped by thoughts of the number of women they would have to admit having killed.

  19. AVI: I think you give Semmelweis’s colleagues way to much credit for moral sensibilities. They were just lazy, they probably picked their noses between deliveries with those hands,, and, besides, it was not a randomized double-blind clinical trial, our current sine qua non, just one man’s opinion.

  20. It is pretty obvious that there is a war going on for decisive control over the decision making process and power in our country, and there always has been.

    Given their knowledge of History and human nature, the Founders certainly anticipated that there would be this struggle and tried, by the way they constructed our government—the old “checks and balances”—to manage what they couldn’t prevent.

    Given that this battle for power and control was always there—surfacing into public view now and then—that battle today seems to be more visible, open, and intense, with parts of our government that I thought were relatively content with their separate but equal status, knew their role and place in our Republic, and used to work in fairly good harmony, at serious war with each other, trying to gain the upper hand over the other two branches.

    There is the usual jockeying for position, power, and control between the standard three branches of government (occasional Cortex, are ya listenin?)—The Executive, the Legislative, and the Judicial branches—that the Founders set up.

    And, at this point, I’d say that the Judiciary seems to be winning, if by “winning” we mean it’s ability to block/negate the will, the actions of the other two branches, and often the public will as well.

    However, new contenders have entered into the struggle for power.

    There is the ever growing Deep State, born on September 18th, 1787–the day our Constitution was signed—and perhaps within that Deep State there are the Permanent Bureaucracy and the Intelligence Community subsets, whose interests may or may not always be the same.

    Luckily, as far as I can see, in contrast to many other countries down through history, our Military has not yet joined in the fight for power and control in any major way, and is content to be subservient to civilian control.

    Given how feckless and ineffectual many of our recent leaders have been, though, this could change.

    Then, there is the MSM, which is also trying to shape and control things.

    It could also be argued that Academia and, to a lesser extent, the Entertainment Industry are each trying to constrict, channel, and shape people’s knowledge, and therefore their world-view and subsequent actions, and thus a measure of power and control.

    In our Post-Christian era the Religious establishment–in the past always a major contender for power–has, as I see it, seen it’s power and influence steadily fade.

    Then, we have big/global business and/or the new technocrats.

    Looking at the current melee, it does not look like things will end well for our Republic.

  21. MikeK:

    I don’t have time to read the entire Turley piece right now, but as far as the quote you gave from it, Turley is wrong.

    Obama was making a political speech, but he was making a factual statement about the ruling in the case, and his factual statement was incorrect as a matter of law not as a matter of opinion or politics. Simply put, he mistated the ruling in the case rather than just disagreeing with the ruling. The latter would have been a political statement and if Alito had said “not true” to that, then Alito could be said to be making a political statement as well. But if Obama had said 2+2=5 and Alito had mouthed “not true,” that would not make Alito’s statement a political one, merely a factual one.

    The fact Obama misstated had to with whether the ruling reached foreign entities, which it did not. That’s what Alito was responding to.

    And Alito made no public statement in the sense that he didn’t stand up and say it, or say it in a speech, or anything like that. He was reacting in the moment, and although he was in public, it was something he didn’t expect to be broadcast (although that was naive of him, I think).

  22. Beyond retarded. If there are conservative and liberal judges, then it stands to reason there are Trump and Obama judges.

  23. Roberts can pretend all he wants, but the left plays a law fare game of judge shopping an Obama judge that makes an absurd aconstitutional decision that goes to the 9th and then thrown out by the Supremes. it wastes our resources but buys the left time.
    Roberts is full of shiite to pretend otherwise

  24. as far as the quote you gave from it, Turley is wrong.

    Oh, I agree and not just for the reason you give. I don’t think Alito has attended another SoU speech. It was the epitome of rudeness to attack people who were attending his speech and are of equal significance in government. I think the Congressman who shouted “You lie” in another speech was also wrong.

    Roberts is wrong and I wonder what is behind it.

  25. Snow on Pine:
    I wish to point out the Federal bureaucracy was extremely small until the passage of the 16th Amendment, in 1913, that allowed the income tax. Coincided with the birth of the Progressive movement. Sold to the public as applying only to the few very wealthy. Ever heard that claim made more recently?

    The cost of living was flat during the entire 1800s; a loaf of bread cost the same in 1801 as in 1899. But since the Federal Reserve, also established in the same era, we now have 2% annual inflation as an inherently ‘good’ thing. So Federal debt is discharged with depreciated dollars. Cool, huh?

    That was all the fuel the Federal engine needed.

  26. neo on November 25, 2018 at 3:04 pm at 3:04 pm said:
    MikeK:

    I don’t have time to read the entire Turley piece right now, but as far as the quote you gave from it, Turley is wrong.
    Obama was making a political speech, but he was making a factual statement about the ruling in the case, and his factual statement was incorrect as a matter of law not as a matter of opinion or politics.

    * * *
    Sounds kind of like this guy, doesn’t it?
    https://thehill.com/blogs/blog-briefing-room/news/177243-rep-wilson-you-lie-has-been-vindicated

  27. Cicero–From what I understand, up until the passage of the income tax, the Federal bureaucracy was, indeed, quite small because, for one thing, it was entirely funded by customs duties collected at our ports.

    Once the income tax was in place, with all the revenue it brought in, the bureaucracy could begin to expand and grow.

  28. It’s surreally comical that Justice Roberts would suggest that there are no Obama judges, or Trump judges, etc., when so many political observers and pundits would agree that Trump’s victory over Hillary Clinton came down to which one of those candidates people preferred to be picking our next SCOTUS judges. If there really were no “Obama judges” (and therefore no Hillary Clinton judges), then certainly that wouldn’t have been the deciding factor that it was.

    That said, I would partially agree with Roberts in this respect: there are no justices that belong to Republican appointees in the same way that justices belong to Democrat appointees. That’s because, to the extent that Republicans are successful in appointing judges who will honor their oaths to uphold the Constitution (i.e. only nominally successful), their judges are loyal to the Constitution, unlike “Obama” judges who are loyal to the ideology of their appointer.

  29. Impartiality, like everything else, is useful in some contexts and not others. In a society with lots of solidarity whose constituents have much in common it’s a useful way to settle some disputes. In a society that has no solidarity and nothing in common its a bad game theory choice.

    Think of it this way. People in prison don’t act with “impartiality”. They respond to the crudest form of prison ethics (find a tribe based on my skin color and defend my turf).

    Whether impartiality is good depends on the context surrounding it.

  30. Chuck Schumer knows very well that what he is saying is utter balderdash- he also knows that in New York there is about zero chance he will pay a political price for that balderdash.

  31. “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

    I remember thinking when I first read that comment after her nomination, “Cool, we just put a racist, sexist bitch on the Supreme Court.”

  32. Any claim to impartiality is rooted in that persons fealty to the Constitution. That’s why the interpretation has to be flexible.

  33. Will Roberts recuse himself if the cases involving Trump come to the Supreme Court or will he contend that he is an extraordinary, dedicated judge doing his level best to do equal right to those appearing before him. It will be interesting.

  34. What if the President were to turn this conversation with Roberts into a bigger deal. Chew on it. Encourage the Chief Justice to comment further along the vein he has opened. Then when next the Court votes 5-4 to rebuff a controversial challenge to the administration, or to decide a case before it to the detriment of the Left, how much more difficult it would be to rail at the Court as a tool of Trump.

    Maybe that’s crazy talk, but in the past two years so many similar pieces of Trump bait have been snapped up by his opponents only to leave a hook embedded in their craw.

  35. Chip – it’s an interesting suggestion, but the Left just ignores anything that disrupts their narrative. Notice how quickly their railing against Comey became praise, and the same with Sessions.
    They won’t find it difficult to rail at anything Trump does, regardless of whether or not they supported exactly the same thing previously (examples are abundant).
    They really are that unprincipled.

    Essentially, the Left can’t be trolled, because they are unfazed by any kind of arguments.

  36. In our Post-Christian era the Religious establishment–in the past always a major contender for power–has, as I see it, seen it’s power and influence steadily fade.

    The Catholic Church in this country was largely taken over by the left in this country in the 60s with the consequences one might expect. I keep recommending this book to any interested in the story.

    Many of the mainstream churches have been taken over by the left the past 40 years with the decline in attendance following.

  37. Nothing but more Trump Derangement Syndrome. All this pearl-clutching is over something which has been a popular observation for a hundred years:

    “…no matther whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ iliction returns.” — Finley Peter Dunne, “Mr. Dooley’s Opinions” (1901)

  38. The Catholic Church in this country was largely taken over by the left in this country in the 60s with the consequences one might expect. I keep recommending this book to any interested in the story.
    and the seminaries by gays

  39. The Vatican created the Leftist alliance and funded it, it was not the Left hijacking the Catholic church although it looks that way due to the fusion in Latin America.

  40. But since the Federal Reserve, also established in the same era, we now have 2% annual inflation as an inherently ‘good’ thing. So Federal debt is discharged with depreciated dollars. Cool, huh?

    The Fed R is not controlled by the feds, the government, or US politicians.

    It is neither Federal nor is it a reserve of anything.

    Americans do not know that they have lived under Slavery 3.0 for some time now. It is a much more efficient system for wage taxation than say, the shackles of physical slavery 2.0

  41. Americans do not know that they have lived under Slavery 3.0 for some time now. I

    The only slavery you’re living under is between your two ears.

  42. Many of the mainstream churches have been taken over by the left the past 40 years with the decline in attendance following.

    Among Protestant bodies, the decline in attendance is proportionate to the deficit of seriousness, but you find it in denominations of all stripes. In the Catholic Church, you had a whole institutional and psychological architecture which fell to ruin. What clergymen actually did say was not such a problem. What they did not was more of a problem. More consequentially though, you had a whole set of practices (some daily, some weekly, some monthly, some seasonal) which disappeared or were disfigured beyond recognition. This occurred among the laity, the diocesan clergy, and in the religious orders. It has destroyed the orders pretty thoroughly.

    Terrible thing though, is when you see ministries fail even when everything is done according to spec. The finest clergyman I have ever known had (by the time infirmity forced his retirement) only a few dozen congregants left. Since I’d joined his congregation fairly late, I had no idea where all the people had gone, and the residue who’d been associated with the congregation for a long time had no ready explanation.

  43. Among Protestant bodies, the decline in attendance is proportionate to the deficit of seriousness, but you find it in denominations of all stripes. In the Catholic Church, you had a whole institutional and psychological architecture which fell to ruin. What clergymen actually did say was not such a problem. What they did not was more of a problem. More consequentially though, you had a whole set of practices (some daily, some weekly, some monthly, some seasonal) which disappeared or were disfigured beyond recognition. This occurred among the laity, the diocesan clergy, and in the religious orders. It has destroyed the orders pretty thoroughly.

    It’s about time the whole State religion business has collapsed. And by that I mean utilizing the name of the divine to create businesses and government power structures, whether we one sees Protestant denominations lording over the congregations donating them their porsches and houses, or Vatican system corruptions and “Vicars”.

    Some of us have waited for more than several centuries to see the church that killed and tortured the saints of the divine god, get the justice we all deserve.

    The 12 tribes of Israel did not even kill half as many prophets before they were divorced and scattered.

    What clergymen actually did say was not such a problem.

    Covering up for child trafficking and sexual slavery is a pretty big problem. Especially when the Vatican and Italian mafia patriarchs got kickbacks from sending sex slaves to the Islamic harems.

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