Ilya Shapiro

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.

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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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Required Reading: Equal Protection Edition

Contemplation of Justice

This is pretty much required reading. William N. Eskridge Jr., of Yale Law School, offers an opinion in favor of Amendment XIV recognition of same-sex marriage in Ohio. The middle of the article stands out:

Justice Anthony Kennedy said: “This definition has been with us for millennia. It’s very difficult for the court to say, oh well, we know better.” Justice Samuel Alito asked: “How do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?”

All of the justices and counsel addressing this point accepted the premise that no culture had ever recognized same-sex marriage. That premise is incorrect.

First- and second-century historians Suetonius and Tacitus (disapprovingly) documented official same-sex marriages in imperial Rome. Some modern historians have found plausible evidence of such marriages among Egyptians, Canaanites and Hittites and on islands in ancient Greece. So it is not right to say that the Western tradition had never entertained marriages between people of the same sex until the 20th century.

The evidence is overwhelming for non-Western cultures. In their 1951 book “Patterns of Sexual Behavior,” anthropologists Clellan Ford and Frank Beach surveyed 191 world cultures and found many examples of same-sex intimacy occurring “within the framework of courtship and marriage.” They were mainly referring to “berdache” marriages, in which a man would marry another man who performed domestic duties or a woman would marry a woman who worked outside the home. Researchers have demonstrated that a majority of Native American tribes (as well as many tribal people elsewhere in the world) have recognized such marriages at points in their histories.

Anthropologists have also documented the phenomena of “woman marriage” in African societies, in which a wealthy woman marries another woman and then secures her impregnation, thereby generating heirs. Anthropologist Denise O’Brien reports that such marriages have been recognized in more than 30 African cultures.

There are other examples (some more equivocal), but these show that there has been no universal definition of marriage that excludes same-sex couples.

To the one, it should be noted that Prof. Eskridge also authored an amicus brief in support of the Obergefell petitioners on the question of the Fourteenth. And while the interest of amici might be a bit thin, the brief still makes for excellent reading.

To the other, we should remember what is at stake: Ohio is trying to unmarry a dead man.

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Eskridge Jr., William N. “The 14th Amendment should cover same-sex marriage in Ohio”. The Washington Post. 19 June 2015.

Eskridge Jr., William N. and Ilya Shapiro. “Brief of Amici Curiae CATO Institute, William N. Eskridge Jr., and Steven Calabresi in Support of Petitioners”. Supreme Court of the United States. 6 March 2015.