Chief Justice Roberts

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.

The Picture: Marriage Equality Mix

Contemplation of Justice

“The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”

David A. Strauss

There is a lot going on. Or maybe not. Where once the idea was that courts should stay out of things and let “democracy” pick and choose who gets what human and constitutional rights in the United States, many of those advocates are looking to the Supreme Court of the United States to cram the gays back into the closet. With Justice Ginsburg suggesting last month that the Supreme Court might get involved if the lower courts make a sufficient mess of things, and the Fifteenth Judicial District Court of Louisiana holding the line in terms of state courts, one might wonder about the fervor Robert Barnes noted last week for the Washington Post:

The 10th edition of the Supreme Court under Chief Justice John G. Roberts Jr. begins work Monday with the prospect of a monumental ruling for gay rights that could serve as a surprising legacy of an otherwise increasingly conservative court.

Whether the justices will decide that the Constitution protects the right of same-sex couples to marry dominates expectations of the coming term; such a ruling would impart landmark status on a docket that so far lacks a blockbuster case.

And some say it would be a defining moment for a closely divided court that bears the chief justice’s name but is most heavily influenced by the justice in the middle: Anthony M. Kennedy, who has written the court’s most important decisions affording protection to gay Americans.

“If the court establishes a right to same-sex marriage . . . [it] will go down in history as one that was on the frontiers of establishing rights for gays and lesbians,” said David A. Strauss, a constitutional-law scholar at the University of Chicago.

“The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”

Something about blockbusters, to be certain; one would hope we have enough worked out about our society that we should not necessarily be rushing for a marquée show every year. That is to say, there is plenty wrong with society, but do we really have so many fundamental civil rights questions coming to the fore? And if so, well, what the hell is wrong with Americans that we have not yet figured out how some of these very basic concepts work?

(more…)