Home » No, Justice Roberts wasn’t screaming at the other justices about Bush v. Gore and riots

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No, Justice Roberts wasn’t screaming at the other justices about <i>Bush v. Gore</i> and riots — 49 Comments

  1. So he’s either lazy or a coward.

    I find it hard to believe that half the country thinks the election was fundamentally dirty (including 1 in 5 Democrats) and the response of those whose job it is to adjudicate it is to collectively shrug their shoulders because they just can’t be bothered.

    I wonder if he realizes that going forward, elections will only be decided by who can cheat harder better faster stronger.

  2. Most parsimonious explanation is that he’s a spineless coward.

    Adding just a smidgen of curlicues and epicycles, would also posit that he’s compromised. We all are, it’s just that most of us are not important enough to warrant the digging.

  3. Zaphod:

    “Spineless coward” is basically what I’m saying.

    He would call himself: sober, prudent, careful, thoughtful.

  4. Belmont:

    My sense is that the Democrats who think it was dirty are perfectly fine with that because it led to the “right” result. My sense is also that the Democrats who would have a problem with fraud have solved that dilemma by thinking the election was on the up and up.

  5. “You might say that Roberts is a “conservative” judge if you define (or redefine) “conservative” as meaning keeping things the way they are. The irony is that, in this case. the consequences of keeping things as they are …”

    Exactly. The don’t rock the boat, “conservative”. At best a brakeman on the bobsled to Hell

  6. After Chief Justice Roberts vindicated ObamaCare with a weaselly argument, Jerry Pournelle wrote what I thought was a shocking column justifying Roberts:
    _______________________________________

    Now it is up to us. Mr. Roberts has said he cannot protect you from the consequences of your actions, and he has done so at a time and in a way that makes the question stark and clear. Whatever his intentions, this is what he has done, and I for one thank him for it.

    –Jerry Pournelle, “Madison, the Federalist, and Chief Justice Roberts”
    https://www.jerrypournelle.com/chaosmanor/madison-the-federalist-and-chief-justice-roberts/

    _______________________________________

    I was a Pournelle fan and sent him an email:
    _______________________________________

    Dr. Pournelle:

    I’d prefer that Roberts just did his job interpreting the Constitution instead of manufacturing a legal argument as a fancy bank shot to guide American history.
    _______________________________________

    I was surprised to receive a reply:
    _______________________________________

    Perhaps. I am not privy to his private thoughts. But he is a very intelligent man. And he knows where Taney ended up in the history books. It’s not really his decision to make, and yet there he was, the deciding vote.
    _______________________________________

    Taney was the Chief Justice on the dread Dred Scott decision which exempted black Americans from full rights of citizenship. I replied:
    _______________________________________

    Thanks for the reply. I remain baffled though. How was it not Roberts’ decision to make? He is the Chief Justice of the Supreme Court — making hard, historic decisions goes with that job.

    I’ll take my answer off the air…
    _______________________________________

    His final reply:
    _______________________________________

    The problem is that he is not immortal nor are the other four; and without a victory in the political realm, conservatism is doomed..
    _______________________________________

    I still can’t make Pournelle’s argument work. If the Supremes can’t make the hard decisions unless a majority political force will back them, what use is the Supreme Court?

  7. If being “conservative” means keeping things the way they are, then applying the term to Constitutional questions means giving its words and phrases the meaning they had at the time they were written (also applicable the to the words of the subsequent amendments).

    I think the Constitution should be viewed as written by a “sovereign” people, with sovereign meaning “answerable to no one.” After all, they had recently overthrown the previous sovereign, whose power over them was effectively absolute. Those people of course recognized the necessity of establishing a government that would limit their absolute freedom, but their intent was to relinquish only so much of their sovereignty as would provide for the greater good — and would avoid chaos. Recognizing that time changes things, they allowed for amendments, but only by the action of a supermajority of the people, not by the “interpretation” of a handful of men.

  8. It seems to me that the idea of maintaining the status quo falls to the side also if the institution itself might be at risk. Therefore, Roberts (and Barr) and others that are near or at the top of our Federal institutions (FBI, CIA, DOJ, etc) care more about preserving the institution above all else, even principle or Constitution.

  9. I do think Roberts cares most about the institution of the Court, and its reputation. What he can’t seem to see is that by ducking the hard decisions he demeans the reputation of the Court.

  10. neo,

    “Zaphod:

    “Spineless coward” is basically what I’m saying.

    He would call himself: sober, prudent, careful, thoughtful.”

    A “sober, prudent, careful, thoughtful” jurist logically could not fail to conclude that for the S.C. NOT to take the case is simply not an option, given that the case involves an explicit mortal threat to the Constitution itself.

    BTW, that applies to the other 3 ‘conservative’ justices who rejected the case. They have made the case for their own unfitness for the office with which they were honored.

    ““If you once forfeit the confidence of your fellow citizens, you can never regain their respect and esteem.” Abraham Lincoln

    That truism especially applies when the very life of your country and your sworn oath to the Constitution is at stake.

    huxley,

    “Now it is up to us. Mr. Roberts has said he cannot protect you from the consequences of your actions, and he has done so at a time and in a way that makes the question stark and clear. Whatever his intentions, this is what he has done, and I for one thank him for it.” –Jerry Pournelle

    I understand your inability to make Pournelle’s POV work, as it is a fundamentally flawed rationale. Roberts is not being called to protect us from the consequences of our actions, he is being called to decide if the actions of some (former) Americans are Constitutionally valid… which is the sum total of the S.C.’s Raison d’être. No more fundamental violation of that judicial office is possible than to reject that responsibility and duty.

  11. Establishment Republicans are democrats lite, the only difference between them is democrats if gotten full control could ruin America in 8 years, republicans might be able to slow down the process to 20 years, but the destruction is inevitable following on the same path. Trump is the guy who wants to save America, wants to change course and steers America away from the inevitable destruction it was heading, wants to intervene and clean up the junkie, establishment hated it because the process of quitting is too painful, so they fight back, the great reset is nothing but another term for “quitting is too difficult, let’s get back on drugs”

  12. Pournelle frequently said (and really meant it, given his religious affiliation) that despair is a sin. So perhaps that was a reason for his apparent straw-clutching. Can’t be sure though. He was a towering intellect possessed of encyclopedic knowledge and therefore was operating above my pay grade even at the very end of his life and after brain tumor and strokes.

    Have a lot of contempt for a certain Ctein #$%*bag for dumping on Pournelle shortly after his death.

    Ceterum autem censeo Roberts is a Fink.

  13. Roberts is not being called to protect us from the consequences of our actions, he is being called to decide if the actions of some (former) Americans are Constitutionally valid… which is the sum total of the S.C.’s Raison d’être.

    Geoffrey Britain: Indeed.

    I’m reminded of an old “National Lampoon” parody of those cute educational comic strips for kids way back when about “How a Bill Becomes Law,” except the “Lampoon” showed a little fellow in flat cap as the Bill carrying a sign, “Kill the Negroes!”, going from one DC office/chamber to another until the Bill was passed.

    I suppose it wouldn’t be John Roberts’ job to protect us from that Bill either.

  14. Zaphod:

    I share your estimation of Pournelle. My take, FWIW, is that Pournelle had been in the political trenches, often losing, long enough that he had gone full Mencken:
    _________________________________________

    Democracy is the theory that the common people know what they want, and deserve to get it good and hard.
    _________________________________________

    Pournelle had lost faith the government would function properly, so it was up to citizens to rise up and demand what needs to be done.

    And if they couldn’t rise to the occasion, that was that.

  15. I never claim to be any kind of legal expert or scholar, but I found Robert’s ruling on Obamacare to be putting it back in the lap of Congress, right smack where the f*ckup originated. I couldn’t find much to argue about there, to be honest – it seemed to me that he was assigning clear ownership and cleanup of the mess to one group and one group only, and letting the voters know it was up to them to change drivers. I don’t find much company in that position, I’ll admit.

    I’ve also heard that it is not uncommon for justices to come to appreciate and even covet the role of swing justice – one who votes across the aisle, so to speak, as a strategy to consolidate the leveraging power of the swing vote in appealing others to convince him of their arguments as a form of negotiation. I can understand the concept but it’s difficult to comprehend how a justice could come to believe that the solemn gravity of Supreme Court justice could be horse-traded for such shallow ego-driven gratifications.

    I find it hard to believe that Roberts is so corrupted as to think this way, but it’s easy to believe that he’s just a spineless posturing fool when looking at this track record as the court has become more Conservative during the Trump years. It’s as if he’s terrified that some future historian will label him a Conservative Chief Justice. It’s as if his goal is to end his career with a zero sum game.

  16. Aggie,

    “I found Robert’s ruling on Obamacare to be putting it back in the lap of Congress, right smack where the f*ckup originated.”

    Certainly Congressional democrats bear soul responsibility for Obamacare, given that not one Republican voted for it. But that did not absolve Roberts of his duty to rule on its Constitutionality. And the whole case rested upon one issue, is it Constitutional for Congress to compel American citizens to buy a product? Roberts ducked that issue by claiming it NOT to be a forced purchase but to be a “tax”.

    That participation in Obamacare by an overwhelming majority of Americans was necessary to make the scheme work was irrelevant to asserting that Congress could legally force that participation by ‘taxing’ them into compliance.

    Which is exactly what Roberts argued. A failure in reason so inadequate as to demonstrate his unfitness for the ‘Supreme’ Court. And in an irony literally biblical, he’s done more to eviscerate the Court’s fitness and reputation than has any other justice in the modern era. Joined now by three other pathetic excuses who have joined him on a Court in disrepute.

  17. Well, when the Texas case went to the Court, my first thought was, “is it solely within the Chief Justice’s purview to determine whether to hear the case?”.
    I subsequently learned that it was not; and of course the vote was 2-7 (home team first).

    So, although I am no fan of Roberts I cannot blame him for this without inside information.

    I do not know, for instance, how much leverage the CJ has over the others, and how malleable they are. I would not expect Justices Thomas or Alito to be cowed. The others?

    I continue to be mystified.

  18. Robert Barnes of Viva Frei and Barnes has made the point repeatedly that the Justice system is political. That the left always acts as a bloc and that there is too much influence from the right with the Federalist society. Their weekly podcasts are not to be missed listening.

    With Obamacare, Roberts was set to vote to declare it unconstitutional but switched at the last second. The conclusion is that the Obama administration got to him somehow. The anger the other four non-conservative Justices felt came through in their writing and if you read the decision itself, it was just like Comey’s speech not to charge Clinton. He built the case and at the end stated “no reasonable prosecutor would charge her.”

    Barring events, the clock will run out, Biden will be inaugurated and years later just like the Bush vs. Gore case that concluded Bush did win Florida, it will be concluded that there was massive coordinated fraud. But as Harry Reid said when confronted about his speech being false that Romney hadn’t paid his taxes, his response was “we won didn’t we”. That is where we are right now.

    This will go down in the history books as bad a decision as Dred Scott or Plessey vs. Ferguson. Or allowing the Japanese detention camps to remain.

  19. Geoffrey Britain @ 11:39 – well stated and well put. Bravo.

    I sure wish we could have a reply function with the website. It would make continuity of discussion better.

  20. Geoffrey Britain @ 11:39. Agree on Roberts. I get the impression that he has long been very pleased with his excellent intelligence and his ability to argue any side of a case; that he loves dazzling or surprising an audience (but not in a flashy way; a modest genius, if you will). To me, that must be the motivation for deciding Obamacare as he did: first destroying the rationale that this law could be justified under the Commerce Clause, and then –zap!– declaring it was just fine because a forced purchase is just a kind of tax (even though Congress had gone to great lengths to say the mandate was not a tax, nossirree, no taxes here). That too-clever-by-half approach absolutely soured me on the man, and he’s done nothing since to make me think he’s anything but a show pony, and one bought and paid for the Obama machine. Just a theory, though.

  21. Conservativism in the general sense is moderating. Libertarianism is self-organizing. Liberalism is divergent. Progressivism is [unqualified] monotonic change. Conservativism in the American context is Pro-Life, Liberty, and the pursuit of Happiness, without diversity and other petty bigotries. It is the national charter established in The Declaration of Independence, and the organizational framework recorded in The Constitution with two named parties: the People and our Posterity. #PrinciplesMatter

  22. Thanks for bringing up the memory of Mr Pournelle.

    “The Supreme Court justices have not met in person for a conference since March. So there is no closed room from which shouting could be heard”

    My inner compass is insisting: fake but accurate.
    Also, Dave’s point is precisely correct “Trump is the guy who wants to save America”

  23. Roberts favors neither the Republican nor the Democratic parties.

    He is a man of the Dinner Party. He’s primarily concerned with the placement of the silverware and the wine glasses.

    He’s not going to offend the hostess.

  24. Whatever CJ’ s reasoning, the result yields the frustrated query; “What DO they have on this guy?”. I have no idea what or whether, but from the outside….
    I can think of no position more insulated from the results of their decisions than the Supremes.

  25. In the last several years, I’ve concluded that when you see anonymous sources quoted, it’s a reasonable wager the reporter just made it up.

    As for Roberts, that’s an interpretation of his conduct that’s worth pondering. Looked at collectively, the Supremes are like the rest of our political class: a bunch of highly-credentialed sh!ts. Much public discourse today is devoted (implicitly) to trashing my grandparents contemporaries, without ever acknowledging that their retirement was when the adults left the room.

  26. “for most situations if he can find any way to avoid changing the status quo he will” – Neo

    My biggest problem with that explanation is that every status was “quo” at some point.

    The argument is strikingly similar to the one that says, “Now that the election is over, it’s wrong to challenge it” simply because the (fake?) results are now the status quo. This totally dismisses the many changes that were made to the former electoral “status quo” procedures.

    So, even aside from the Constitutional problems, if this was the kind of rationale to be applied, I would have rejected Obamacare on the theory that it was the thing that changed the much longer standing status quo, and thus should be struck down.

    As for the assertion that the law should stand because Congress voted for it and the people voted for their Congressional representatives, and thus they are stuck with it until they throw the bums out — as many here have remarked,
    that removes any possible reason to have the Court deciding Constitutional questions.

  27. Art Deco:

    “Looked at collectively, the Supremes are like the rest of our political class: a bunch of highly-credentialed sh!ts.”

    I went to a grad school that was a feeder for the political class. I called that species “beady-eyed little crapweasels”, but your term is pithier. And yes, the grown-ups left the room in D.C. a while ago. I’m afraid it’s up to the rest of the country to restore adult leadership. I can hear the “It’s no use, the Feds will just nuke/cancel/vaporize/drone-swarm anybody who resists, we’re all doomed” objections now. To quote Henry Ford: Whether you think you can, or you think you can’t–you’re right.

  28. So, what will be the next phony, baloney headline??

    VP Pence’s very public covid inoculation was really an injection of saline solution !!!
    Pence, unaware his mic was on, overheard telling others that the vaccine will cause 25% of all those inoculated to die from its side affects and the other 75% will receive no benefit at all !!

    Stay tuned for updates on this BREAKING NEWS !!!!

  29. Is it possible that he was overheard yelling at the Zoom call and that detail was misreported?

  30. From the same RedState article:
    “When this sorry spectacle’s history is written, the Supreme Court will not cover itself with glory. Regardless of the factual basis of the case, when eighteen states come to the Supreme Court on an issue which the Constitution says gives that court original jurisdiction, the sleight-of-hand dismissal engineered by Chief Justice Roberts was a shameful dereliction of duty. I understand why he didn’t want to deal with it; every day, we are all confronted with things which it is our duty to do but which we’d rather just not. What separates adults from f***ing children is that we do those things despite our aversion. When Roberts dismissed the Texas case, it was a textbook case of moral cowardice and cheap pettifoggery. What happens in the coming weeks, months, years that grows out of this election lies, to a great extent, at the feet of John Roberts, who should have acted and could have acted but decided just not to do his duty. And it is really a shame that this resolution failed to pass because it said what needed to be said in the way it needed to be said.”

    President Trump may have no choice but to invoke EO 13848.

    A week or so after former official at CISA flatly states this is the most secure election ever, they discover a unprecedented cyber intrusion resulting in “federal authorities expressed increased alarm Thursday about a long-undetected intrusion into U.S. and other computer systems around the globe that officials suspect was carried out by Russian hackers. The nation’s cybersecurity agency warned of a “grave” risk to government and private networks.”

    “This attack started in March with the first exploitation starting in April. Either they [CISA and intelligence community] didn’t know about it —a failure in the “defend forward” philosophy—or they did know about it, in which case they also failed to defend forward. There are going to be tough questions that the intelligence community will need to answer internally.”

    As has been expressed elsewhere, when the most important case comes to the Supreme Court in decades, they punt. The consequences of their dereliction will be a stain on this court.

  31. Arghh – Bush vs Gore – WHAT THE SC said was that the recount had to follow the Florida Constitution – that is, recount the whole state or nothing. You don’t get to just recount the part you think will put you over the top.
    Personally I think that Roberts is more afraid of the consequences of a review of his performance as oversight on the FISA court.
    Also make note that sending money to GA will only empower Cocaine Mitch to reach across the aisle to make sure the RINOs get to dip their beaks along with their dear friends and colleagues on the left.

  32. Also, is it possible that the Supreme Court is meeting quietly on major cases like the Texas case without that fact being reported? I think there are a number of possibilities and we just can’t be certain either way. I don’t like anonymous sources and I wish the source would come out publicly on something this big.

  33. It’s sort of the opposite:
    One party is staid, atavistic, socialistic, flirts with strong men and autocracy and is paleo and tribal and is filled with emotion and feelings. Exactly how we lived 20,000 years ago.

    One party is thrilled with freedom, making money and things, trying to make everyone rich and creative and productive and is paying attention to the Enlightenment, reason and logic.

    So we have the Paleos vs the Enlightens. The Tribals vs the Moderns.
    The Dems vs the Pubs.

  34. fiona:

    You write: “sending money to GA will only empower Cocaine Mitch to reach across the aisle to make sure the RINOs get to dip their beaks along with their dear friends and colleagues on the left.”

    If you were a Democrat troll (which I do not think you are) you could not be doing more to favor the Democrats yourself.

    Sending money to GA will do a great deal more good than that. McConnell has held the line on tons of things and been especially good on judicial appointments, and he would block the worst of Biden’s if possible. What’s more, your “solution” would guarantee that there would be no need to reach across the aisle to give the Democrats every single thing they want, because they would have total control of the executive branch AND Congress.

    Yours is one of the worst suggestions I’ve ever seen.

    As far as Bush V. Gore goes, the very first thing the Court did was to issue a stay on the counting, freezing everything. A few days later when they issued their final judgment, they knew that by saying the counting was unconstitutional the way it had been handled, they made all further counting impossible because of the deadline. So they voted to maintain the status quo, which was a Bush win.

  35. It’s like in football. If the call on the field is an incomplete pass, there must be indisputable evidence that it was a catch otherwise the play stands. The booth review must come to a decision in just a few minutes. In this situation, there is no time for a months long court challenge so the ruling on the field will stand regardless.

  36. Best quote so far from Barnes Law:
    “Not ripe in spring, no standing by summer, laches by fall, and moot by winter.“

    I hope to see “hanging” judges with the signs around their necks that says “No standing”

  37. Frankly, if there were ANY truth to this, mainly, that Roberts considered the “riots” in ANY regard, then the man needs to resign. And should have resigned much earlier, so Trump could’ve really made the Left’s corks pop by having him select 4 judges.

  38. The Republicans are on target, right on the glide path to lose the Senate. Stacy Abrams, that buffoonish, cartoonish maniac has been doing something the Republicans are incapable of doing: She’s been paying attention and staying focused on the most important thing.

    Voter Registration and Absentee Ballot management, probably a good bit of it outside the lines. The Republicans will sit there and take comfort in their polling with Mitch doing regular commercials pleading for money, but I fear it’s too little, too late. Once the REPUBLICAN Governor and REPUBLICAN Secretary of State allowed the 2020 Election irregularities to stand, and folded on the slightest puff of pressurized rhetoric, it was all over. They are willing to lose as long as it means not suffering the embarrassment of sharing the party with Trump any more.

    I know this sounds like defeatism, but I take it as realism. And you know what: That absolute unscrupulous fool Stacy Abrams, the one who refused to concede an obvious and unimpeachable gubernatorial election loss, the one who writes romance novels, you know what she is looking like right now? Like a competent focused political operative who knows what winning looks like, and knows how to get there.

    Change my mind!

  39. The rumors matter not. John Roberts is just another garden variety judge that swore an oath to defend and protect The Constitution and then blatantly proceeded to destroy and defiled said article. Note the Obamacare debacle. Every judge who follows suit to the feckless Roberts should be tarred, feathered, and driven far from home. For Roberts, China wouldn’t be too far.

    The two female SC judges presently on the SC do not have the intelligence for their positions, and this is what happens when the color of their skin is the predominant requirement with nary a glimpse of their character or whether they can even understand what the job entails.

    Don’t even get me started on the three Trump picks. What spineless losers they’ve proved themselves to be!

  40. The resurrection is coming. The country will either be ruled by totalitarian-equivalents, or it will split asunder. The Union is not worth maintaining at the cost of accepting oppression. It was not worth the 500,000 lives lost in the first Civil War, and it is not worth being maintained as a whole under a corrupt self-perpetuating totalitarian force.

  41. I have not spent enough time researching the case brought by Texas and the relevant law, so forgive me if this is half baked.

    But, although I thought the case was a longshot, and thought it likely the Supremes would punt, I did think it had standing. I get that each state gets to write its own election law and the states are responsible for adjudicating and certifying their own votes, but if a state does do something that results in an incorrect result at the Federal level, why wouldn’t other states have standing? Aren’t all states impacted by Federal elections?

    Again, not surprised the Supremes punted, but I was surprised they used that reasoning.

  42. And maybe one of the legal Eagles here can answer this for me. I’ve never understood it, and I think it is settled law. I just don’t know the reasoning behind it.

    The Thirteen Colonies held statewide elections to ratify the U.S. Constitution, accept it and be bound by it. Since a vote got them into the Union why can’t they vote themselves out of it?

    Although I wish there were a less deadly way to achieve the result, I am glad Lincoln fought the South when they tried to leave the Union because it resulted in the Slaves being freed and the abolition of slavery in the United States. However, I never understood the fundamental law. Why can’t States secede from the Union?

    Why can’t Rhode Island hold a statewide vote and say, “You know, this all seemed to make a lot of sense in 1783 (1785?), but we’ve rethought our decision and we no longer wish to be a member of the United States?”

    (I’m not asking about pros or cons, simply the actual legal reason that States cannot voluntarily secede.)

  43. Rufus T. Firefly:

    It’s like the Hotel California – “you can check out anytime, but you can never leave.”

    See this for the legal info.

  44. Rufus – a more practical answer at this point would be : how do we know a vote to secede or not would be honest?

  45. neo,

    Thanks for the link. The 1869 Supreme Court Case, Texas v. White seems like a stretch, but I guess it’s settled law and the answer to my question. So if the other states and Congress agree it can happen civilly.

    I read through a bit of the list of recent and current secessionist movements. I have heard of a few of them, but not most. Speaking of the Hotel California, I did not realize Calexit had gone as far as it has, politically. I would not be surprised to see that come to a national vote. California has a habit of sticking with referenda and seeing them through to actual ballot measures. Very interesting.

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