Two Cents on Tinfoil (Chief Injustice)

U.S. Supreme Court Chief Justice John Roberts at New York University School of Law, 20 November 2015. (Photo: Rick Kopstein/ALM)

To the one, who really likes Chief Justice John Roberts?

No, I mean, sure, you know, his wife and all, but still, is there any one of us who not only isn’t disappointed by Roberts’ general unreliability but, also―in counterpoint to the proposition that one must be doing something right if everyone is complaining―comprehends his underlying legal and juristic outlook well enough to properly endorse it?

To the other, there is this:

What explains the rise of Donald Trump? The right-wing blogosphere has a theory: Trump’s success in taking over the Republican party was caused by Chief Justice John Roberts’ contempt for the rule of law.

The argument, put forth in slightly different forms in recent days by Georgetown law professor Randy Barnett and Cato Institute scholar Ilya Shapiro, goes like this:

Roberts knew that the Affordable Care Act, aka Obamacare, was unconstitutional. He even said so in his majority opinion in NFIB v. Sebelius, the case that upheld Obamacare, with Roberts casting the decisive vote. But, after declaring that Obamacare violated the Commerce Clause, Roberts invented a different constitutional argument under the taxing power to save the law, even though he knew that argument was wrong.

He did this because Roberts doesn’t believe judges should overturn laws enacted by political majorities, even when those laws violate the Constitution. Roberts in effect told conservative voters to go elect their own Constitution-trashing strongman, instead of asking courts to restrain tyrants such as Obama and Trump.

Paul Campos apparently drew the short straw over at Salon, and had to spend enough time picking through right-wing tinfoil to figure out what the hell they were saying. And while we owe him thanks, we also might beg pardon if the striking stupidity he describes seems unbelievable, a word here intended to mean, “pretty much what we expect”.

Here’s the tricky part:

The vast majority of constitutional law scholars don’t believe Obamacare violates the Constitution, but never mind that. The far loopier claim is that John Roberts, of all people, upheld Obamacare because he doesn’t believe in striking down democratically-enacted laws. This is the same Roberts who provided the deciding vote to gut the Voting Rights Act, to overturn decades-worth of campaign finance laws, and to strike down gun control legislation, to name just a few of the many cases in which Roberts has shown no hesitation to overturn the decisions of political majorities.

Er―ah … yeah. I’ll just be over in the corner, muttering to myself. Something about matters of fact and opinion.

That, and a potsherd wrapped in tinfoil wrapped in neurotic crisis.

____________________

Image note: U.S. Supreme Court Chief Justice John Roberts at New York University School of Law, 20 November 2015. (Photo: Rick Kopstein/ALM))

Campos, Paul. “This is the dumbest Donald Trump theory yet: It’s all about John Roberts”. Salon. 13 May 2016.

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