Paul Campos

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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Not About Anything But Democrats, According to Republicans

Judge Merrick Garland of the U.S. Court of Appeals is introduced as a Supreme Court nominee, at the White House Rose Garden in Washington, D.C., 16 March 2016.  (Detail of photo by Kevin Lamarque/Reuters)

“Naturally, I would like to have him treated fairly, but a lot depends on who’s elected, a lot depends on who’s going to be president.”

Sen. Orrin Hatch (R-UT)

Via Reuters:

Two key U.S. Senate Republicans signaled they would be open to considering after the Nov. 8 presidential election President Barack Obama’s Supreme Court nomination of Merrick Garland, the centrist judge who was set on Thursday to begin meeting with senators.

The comments by Utah’s Orrin Hatch and Arizona’s Jeff Flake, members of the Judiciary Committee that would hold any confirmation hearings, came a day after Obama nominated Garland to the lifetime position on the high court to replace conservative Justice Antonin Scalia, who died on Feb. 13.

Senate Republican leaders have vowed not to hold confirmation hearings or an up-or-down vote on any Supreme Court nominee put forward by Obama, whose term ends in January. They want the next president to make the selection, hoping a Republican wins November’s election.

Flake said while Republican leaders were “fully justified” in delaying action on confirmation, if the Republicans lose the White House race the Republican-led Senate “ought to look at this nomination in a lame-duck session in November.”

And while it’s true that something goes here about the futility of predicting conservative behavior, it’s worth reminding that part of the reason for this is that even Republicans aren’t paying attention.

This is the problem: They’re not even trying.

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