Is John Roberts the new Anthony Kennedy—and if so, why?
There’s a lot of talk that John Roberts is taking up where Anthony Kennedy left off, as the new “swing” justice. This is based not just on the memory of his role in the Obamacare tax vs. penalty brouhaha, but on a decision reached yesterday. As William Jacobson of Legal Insurrection writes:
Roberts…saw fit to make a public pronouncement after Trump criticized a San Francisco federal judge for a decision enjoining Trump’s new policy on processing asylum claims, which held that people who illegally crossed the border could not apply for asylum…
The injunction against the new asylum rules was upheld by the 9th Circuit, and the government sought an emergency stay. In a 5-4 Order released [Friday], the Court rejected the stay, with Roberts joining the four liberal justices…
In other words, while awaiting a ruling on the merits, a San Francisco judge had earlier enjoined the federal government from changing previous policy on asylum. When Trump criticized the San Francisco judge as being an “Obama judge,” Roberts—in a public statement unusual for a sitting SCOTUS justice—criticized Trump and stated that there’s no such thing as “Obama judges or Trump judges, Bush judges or Clinton judges,” and that judges are “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Translation: don’t you dare imply that judges are political; we are above all that!
Then yesterday, by refusing to stop the San Francisco judge’s injunction, Roberts became the swing vote when the same issue came to the Supreme Court. He voted with the liberals in allowing the previous injunction to remain in effect.
This was not any sort of decision on the merits; it was merely a decision not to reverse the San Francisco judge’s decision, pending a later ruling on the merits of the asylum question. It was also a defense of that judge as being a member of that “group of dedicated judges doing their level best to do equal right.” Perhaps, to Roberts’ way of thinking, had Roberts voted to reverse the decision of that San Francisco judge, it would have lent support to the idea that the San Francisco judge had been motivated by “Obama judge” partisanship to make an incorrect ruling.
It may be that, when the asylum question is heard on the merits, Roberts will end up voting with the conservatives and uphold Trump’s position. Perhaps. But I believe that in the meantime Roberts was deeply offended by Trump’s criticism of the judiciary, even though I think Trump was absolutely correct in that criticism.
I believe that there are at least three more things operating with Roberts in handing down this decision. The first is that most people, especially ambitious people—and that includes SCOTUS justices—are attracted to power. Power is enticing, and increasing one’s own power is always tempting. So what could be more powerful for Roberts than becoming a swing justice? It would mean that a great many huge and important cases would turn on what Roberts thinks.
Secondly, Roberts was nominated by George Bush. What better way for Roberts to prove that he’s no “Bush judge” than to vote with the liberals? So that’s another motivation to do what he did yesterday.
Thirdly, I’ve noticed a tendency in Roberts—long before Trump became president—to vote in the way that is least likely to upset the status quo apple cart. For example, in the case of Obamacare, Roberts found a “creative” way to avoid a bold overturning of a bill that had been passed by Congress. In yesterday’s injunction case, the path of least resistance was to let the injunction stand rather than to overrule it. But when the case about asylum actually reaches SCOTUS, Roberts could go either way—he might rule with Trump in order to uphold an executive order already issued, or he might rule against Trump in order to support the implementation of the pre-existing (pre-Trump) policy on how asylum is handled.
I wondered what Obama had on Roberts at the time of his weird decision on the “tax” aspect of the mandate in Obamacare.
I just read a novel by a U of Chicago law professor, “Mental State,” that has a plot about a Chief Justice with a skeleton in his closet.
The problem with the Chief Justice is that he has conflated his oath to defend the Constitution with defending the institution of the Supreme Court. The irony, of course, is that in desperately seeking to always avoid the political, Roberts is ending up accelerating the politicization of SCOTUS.
If Roberts let animosity toward Trump drive his decision in this case, then he is living proof of what Trump claimed. And, as you say, Trump is right. Judges are an “extraordinary group” of connected lawyers. That’s the sine qua non. Having a brain, or legal experience, or any sense whatsoever, is secondary.
What Roberts said about the neutrality of the courts, which he said right after the left-wing meltdown at the Kavanaugh hearings, was absurd. If he believes what he said, he’s a fool or a sophist and needs to get out more.
And funny, when Obama the Great called him and his crew out on national TV, Roberts ate it up with a spoon. Why no ire then? Why the bended knee?
If Roberts doesn’t get that a single circuit court judge stopping the Executive Branch in its tracks is causing respect for our legal institutions to crumble among law-abiding people, he needs to adjust his medications.
He can call it what he wants, what he did here. In plain unvarnished, he sided with the #Resistance. He should use that as his epitaph.
Whatever Roberts is thinking of, or hoping for, or basing his legal reasoning upon, I certainly hope he’s driving a BMW:
https://www.dailymail.co.uk/news/article-6520393/BMW-hurtles-20ft-feet-air-crashes-tunnel-roof-hitting-road-barrier.html
Roberts is living evidence of the need to amend the Constitution to provide ten-year term limits for ALL Federal judges.
I fear Kavanaugh might be “persuadable” like Roberts as he was a moderate nominee, in spite of the hysteria.
I would have preferred Janice Rogers Brown but the Democrats filibustered her nomination to the DC Circuit so Bush could not nominate her to the Supreme.
Trump has but one year to appoint another Justice. After Nov, 2019 he will not be able to appoint a more Conservative to the bench. McConnel has already said that no new Justice in last year of a Presidential term. I will leave it at that, it being Christmas and all.
To be precise, McConnell said that there would be no new justice in the the last year of a presidential term held by a member of the opposite party. A distinction but a fairly major one. McConnell would not deny Trump a new justice after November 2019 if one became available.
UI prefer judges who let the legislature legislate and I don’t really care if they block executive power wielded in non-urgent matters. That to me is a conservative position.
Like it or not, Obamacare was passed through the correct channel for making laws. Unless wildly unconstitutional such laws should be respected.
Both Obama and Trump have used executive power in ways that I am unhappy with. I’d have blocked almost all uses of it if I had the power to do so. The President should not be making what are in effect laws.
Currently the system has three bodies all trying to legislate — as in direct what laws are to apply in situations. That is unstable and causes the current situation.
I’m more than OK with Judges allowing Congress to make laws and Presidents not to. However, they too have to not invent laws (the right to abortion should be a legislative issue, for example).
Respecting the Consitution demands that you respect the intended separation of powers.
I will also add that the “last year” rule was for the last year of a second term, not the last year of a first term. There is a difference, because a second-term president cannot be re-elected.
Plus what Michael Towns said. The party that controls the Senate is in charge of whether they want to approve a nominee or not.
Chester:
Which branch do executive agencies (EPA, DOI, FDA, DOE, DOJ, HHS, ,,,,) belong to? Do they operate in accordance with the wishes and policy preferences of the President, and thus shift when a Democrat replaces a Republican, or carry on in the “we be” mindset (we (civil servants) will still be here when you are gone)?
With the power granted to executive agencies by Congress and the Supreme Court (Chevron deference) it can be argued that there are four branches of government at least. Reigning in power to legislate and regulate is not as simple as Presidential Executive Orders; “pen and a phone,” guidance letters to colleges and universities – Title IX and their kangaroo kourts of kompliance.
Trump has but one year to appoint another Justice.
And a second term.
I agree about the fourth branch. Much of this I blame on McCain-Feingold. The members spend their days fund raising while staffs write the legislation they will enforce as bureaucrats,.
I stand corrected. But never underestimate the Stupid Party.
I fear Kavanaugh might be “persuadable” like Roberts as he was a moderate nominee, in spite of the hysteria.
Well, so far, there’s been this on December 10 — “Kavanaugh and Roberts join liberals to reject Planned Parenthood case”:
“Kavanaugh and Roberts join liberals to reject Planned Parenthood case”:
Selective-child is a wicked solution to an albeit hard problem. It’s an unfortunate decision, but unlike one-child, selective-child reflects a normalized psychopathy, and an State-established ethical standard (i.e. Pro-Choice) in an integrated population.
Roberts is a RINO, just as the man who nominated him is a RINO.
“I’ve noticed a tendency in Roberts—long before Trump became president—to vote in the way that is least likely to upset the status quo apple cart.”
That is a primary attribute of a RINO. What separates a RINO from an actual conservative (i.e. someone who wishes to conserve the cultural values they perceive to be praiseworthy) is that a RINO could care less as to the objective worth of the current cultural values society embodies, it is the status quo they cherish because that is the source of their status. Their motivation is simple; it is their status, their position within society which, above all else they wish to preserve.
That is why Roberts takes umbrage at Trump publicly labeling “Obama judges” for what they are, it potentially threatens Roberts’ status.
What a profound disappointment the man is, one who has revealed himself to be not a jurist but a partisan for the status quo, regardless of how detrimental to liberty aspects of the status quo have proven to be.
“What a profound disappointment the man is, one who has revealed himself to be not a jurist but a partisan for the status quo, regardless of how detrimental to liberty aspects of the status quo have proven to be.”
Well said. An apple cart extremist, if you will.
This is a major point from Prof. Jacobson at LI. The refusal to hear the case impacts more than just immigration policy.
On the wishful thinking side, maybe the court’s RINOs are waiting for a really slam-dunk situation where the left simply doesn’t have a legal leg to stand on, but who knows how much damage will be done to the Republic in the meantime?
“The issue before the court was not only the correctness of the lower court ruling, but the use of a nationwide injunction by a district court judge. That practice has become commonplace in the age of Trump, where any district court judge anywhere can issue a nationwide injunction. That gives the legal Resistance to Trump almost endless possibilities. In the Travel Order cases, some judges rejected injunctions, but it didn’t matter because Trump opponents only needed to find one judge somewhere to side with them. Trump needed to win all cases, the Resistance needed to win just once.
I was hoping the Court would take up the nationwide injunction scourge in the Travel cases, but it didn’t. It passed up another opportunity in denying the stay in the asylum case, so the legal litigation terrorism will continue in the lower courts unabated.”
At the RedState post there is a map of the migration-invasion.
Talk about judge-shopping!
And McCain-Feingold delenda est.
It seems clear that the reason Roberts was so sensitive about Trump’s “Obama judge” comments is that Roberts knows full well that Trump is totally correct. Prickly, prickly.
Let’s remember that after Roberts, Bush nominated Harriet Miers for the SC and only withdrew her name under withering criticism from his conservative base. In that context, his subsequent nomination of a real conservative, Alitto, is the outlier.
Roberts clearly is playing a political role in preserving what he sees as the Court’s bona fides with the legal establishment, which tends left. His unprecedented reaction to Trump is the “tell,” this is a person playing a double game.
Yes, he is the new swing vote, following Kennedy, and before him, O’Connor. Another so-called conservative who really isn’t.
And, I will add, this shows that the left had little to fear from Kavanaugh, as Roberts predictably filled Kennedy’s old role to keep the Court from moving right on any hot-button issues..
“Like it or not, Obamacare was passed through the correct channel for making laws. Unless wildly unconstitutional such laws should be respected.”
No, it wasn’t. Just for starters, “tax” bills must be proposed in the House.
I believe the jury is still out on Roberts. Congress was responsible for creating the Obamacare mess, why should he and the SCOTUS be responsible (i.e: take the heat) for cleaning it up? He batted the ball back into their court and the Republicans in Congress still didn’t have the stones to kill it when they could.
The “Obama” judge issue is that everyone knows it’s true, but in Robert’s eyes the President isn’t supposed to come out and say it blatantly (even though that’s Trumps way).
Roberts from the first was obviously gay and a plant to be activated when necessary. That’s what’s happening and Kavanaugh may not be a plant, but he publicly stated that he adhered to his Jesuit training which is just as bad. There is no conservative court now or in the foreseeable future.
If what you are saying is true then Roberts is unable to separate his emotion from his rulings and should have recused himself.
I believe the jury is still out on Roberts. Congress was responsible for creating the Obamacare mess, why should he and the SCOTUS be responsible (i.e: take the heat) for cleaning it up?
Dan: Because it was Roberts’ job to rule on the constitutionality of Obamacare, not to play politics and come up with bogus arguments so Obamacare wouldn’t be overturned because Roberts thought that would be a bad thing.
All you need to know: John Roberts is dishonest.
huxley: Exactly.
Instead of worrying about Roberts becoming the new Kennedy, we should be far more worried he’ll be the new Earl Warren.
If Anthony Kennedy didn’t exist, the Court would have to create Him.
Chester Draws:
“Like it or not, Obamacare was passed through the correct channel for making laws. Unless wildly unconstitutional such laws should be respected.”
Sorry, it was and is WILDLY unconstitutional.
And, this philosophy of Roberts and Kavanaugh that you make rulings as narrow as possible is absurd — look at the baker in Colorado STILL being in legal jeopardy.
Of course Roberts wasn’t “narrow” when he allowed Obamacare to stand — he made up law out of whole cloth — he became a super-legislature and super-executive only “restrained” by his ego.
I’m really not clear where this crap comes from.
THE PRESIDENT — not just Trump, but all presidents — have WIDE statutory authority to reject any residents for the slightest reason whatsoever — pretty close to “I just don’t like the cut of his jib”.
And no individual not ALREADY a citizen of the USA has particularly strong “civil rights” — there are many things which you are only allowed as “an American citizen”. The right to BE here AT ALL is certainly not one of them.
We live in insane times.
‘What better way for Roberts to prove that he’s no “Bush judge” than to vote with the liberals?’
That’s almost the very definition of a “Bush judge”.
This says it all:
Thirdly, I’ve noticed a tendency in Roberts—long before Trump became president—to vote in the way that is least likely to upset the status quo apple cart.
The left and right will hold onto their power and money as long as they can. Also, those who act for America and against them will suffer, aka Kavanaugh and Trump. The “swamp” does exist.
I think we’ve hit upon a new moniker: instead of RINO, “apple cart conservative”. Has a nice ring to it.
1. Not granting cert is not all that significant, but Kavanaugh’s vote on the Planned Parenthood case is not good.
2. I can’t imagine Kavanaugh flipping; not after the hell the Dems put him through.
3. RBG was so, so stupid not to retire during the Obama years. Now she’s old, sick and forced to work all because she was too arrogant.
If there are no Republican judges or Democrat judges, what was all the Kavanaugh fuss about?
Uh huh.
Tell us about it.
It is known that Obama had Brennan spy on Roberts prior to the Obamacare decision. They dug something up somewhere in his past (IE Kavanaugh) and are holding it over his head that is why he is ruling the way he is.
There’s no question but that Obamacare is a tax — it is a tax on the younger and healthier to pay for the healthcare of the older and sicker.
Therefore, SDN is correct: since tax bills must originate in the House, Obamacare is unconstitutional, and by his own reasoning, Roberts should have struck it down. QED.