A few months after Kelo was released, the Senate Judiciary Committee held its hearings on the confirmation of John Roberts to be the next chief justice of the United States. Not surprisingly, Kelo was a topic of much concern among Senate Republicans. They wanted to know if Roberts shared their outrage about the Court’s judgment and if Roberts agreed that Kelo was a judicial travesty that should be overturned as soon as possible.
But Roberts was not so quick to concur with that negative assessment. In fact, Roberts argued that Kelo had a silver lining. The Court’s ruling, Roberts said, “leaves the ball in the court of the legislature, and I think it’s reflective of what is often the case and people sometimes lose sight of, that this body [Congress] and legislative bodies in the States are protectors of people’s rights as well.”
It was perhaps the single most revealing moment in Roberts’ entire confirmation proceedings. The future chief justice had just used Kelo, one of the worst decisions of the 21st century, to make a subtle yet undeniable argument in favor of judicial deference to legislative bodies. If you don’t like what your lawmakers have done, Roberts plainly suggested, take your complaint to the ballot box, not to the courthouse.
“Why does he want to preserve Obamacare?” asked conservative commentator Charles Krauthammer. “I’m not sure it’s because he believes in the policy. I think he’s afraid that if the court overturns something so broad, so deep, so important that was debated for a year and a half, it will damage the court. And he sees his role as a protector of the reputation of the court.”
The reason Roberts believes the court’s reputation is at stake may be the key to understanding what’s happened. Roberts doesn’t feel protective of the institution because of parochial vanity or romantic nostalgia. He’s protective of the court because it’s been under relentless attack from the left as long as he’s been there.
Whether it’s Clinton-appointed Stephen Breyer talking darkly at the Aspen Institute about conservative justices or Rachel Maddow’s anti-Supreme Court screeds, or President Obama repeatedly assailing the justices in public, the threat from Democrats to the court is this stark: If you don’t decide cases in our favor, we will delegitimize you in the eyes of the American people.
This is a dangerous game, but it may have worked.
That opinions and dissents are now operating at the heights of moral messaging and the depths of ad-hominem attack is a relatively recent phenomenon—one that has a metaphor, if not a full analogue, in the bitter divides that have become so familiar in other branches of government. SCOTUS is acting like Congress…
Epps wrote: “On the Roberts Court, for the first time, the party identity of the justices seems to be the single most important determinant of their votes. The five Republican justices sometimes divide in cases (such as the scope of the federal Treaty Power or the validity of ‘buffer zones’ around abortion clinics) that spawn purely ideological debate. But they are united and relentless in pushing for victory in cases that have a partisan valence.”
This week proved how prescient Epps’ observation was. The Court was meant to be debating the role of the federal government in the twin intimacies of our physical health and our expressions of love. Instead, though, its members talked over each other. They flung insults. They assumed the worst. “The stuff contained in today’s opinion,” Scalia sneered in his reaction to his colleague, “has to diminish this court’s reputation for clear thinking and sober analysis.” You could say the same thing, though, about the stuff contained in that day’s dissent.
Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights. Besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution.”
The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.
Roberts says “we must respect the role of the Legislature” but “[A] fair reading of legislation demands a fair understanding of the legislative plan.” However, he goes beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions. By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.
If I were a cynic, I’d tell the Supreme Court to stand for election, since they have now taken to making law rather than interpreting it. Or, we could simply eliminate the Court altogether, and just make all decisions with an online opinion poll. That would be cheaper for taxpayers.
As for Chief Justice Roberts—he’s easily the best politician in Washington.
On Thursday he admitted that in the ruling on Obamacare the Court felt compelled to “depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Translation: We know that we are ignoring what Obamacare really says, but we think it is politically best to not overturn it.
In the matter of the so-called Affordable Care Act, the Supreme Court ruled that the law must not say what it in fact does say because it would be better if it were not to say what it says and were to say something else instead. In the matter of same-sex marriage, the Supreme Court rules that the law must say what it does not say because it would be better if it were to say what it does not say instead of what it says. Which is to say, the Supreme Court has firmly established that it does not matter what the law says or does not say — what matters is what they want…
Constitutional torture is an art, and Chief Justice John Roberts has emerged as its Andy Warhol: an impresario who will put his name on anything.
It is uncomfortable to think about, but our Supreme Court functions in much the same way as Iran’s Guardian Council: It is a supralegislative body of purported scholars, distinguished by ceremonial black robes, that imaginatively applies ancient doctrines “conscious of the present needs and the issues of the day,” as the ayatollahs over there and over here both put it, deciding — discovering! — what is mandatory and what is forbidden as the shifting currents of politics dictate. The main difference is that the Iranians take their sharia rather more seriously than we take our constitutional law: John Roberts’s opinion in Burwell wasn’t just wrong — wrong can be forgiven — it was embarrassing, craven, and intellectually indefensible. Antonin Scalia was right to let him have it with both barrels, but he’d do better to resign from the Supreme Court — it is difficult to see how an honorable man could be associated with it.
Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.
That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.
If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress…
The Supreme Court is not unique in being captured by progressives. It is a lagging indicator, its crush of late-June edicts reflecting what’s become of the political class of which it is now very much a part. The president rules unilaterally and in contravention of the laws. Half of Congress applauds, the rest shrugs and says there is nothing to be done. The elements of the progressive agenda the political branches don’t feel safe implementing are delegated to anonymous bureaucrats in the administrative state. The courts are there to finish the job, to give any mopping up the aura of legal rigor.
The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.
Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly…
Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.