John Roberts and the Legitimacy of the Court
In Jeffrey Rosen's latest love letter to the Chief Justice (there have been 3 0r 4 already), he gushes that Roberts' ObamaCare decision "revealed the chief justice as a master strategist with a nuanced concern for institutional integrity." Presumably his "masterful" strategy included writing an opinion whose reasoning was so convoluted that it attracted not one other justice (although the 4 liberals concurred in the result). How diabolically clever!
The conventional wisdom now is that Roberts sacrificed his right-wing inclinations to preserve the "institutional legitimacy" of the Court. Suddenly "institutional legitimacy" is an independent doctrine in constitutional law -- according to Rosen, it is every bit as important as the text of the Constitution itself: "Justices have broad discretion to pick and choose among competing legal arguments based on a range of factors—including concerns about text, history, precedent, or institutional legitimacy." Sure, the Framers might have written X, but if you think Y sounds more "legitimate," then go with Y.
I can't imagine this sort of nonsense will appeal to many people outside the Beltway. The legitimacy of an institution depends first and foremost on whether it does its job. The job of the Supreme Court is to uphold the Constitution, and thus, to serve as a check against the excesses of Congress. I sincerely hope that Roberts writes a decision next year upholding the Defense of Marriage Act (DOMA) in the name of "institutional legitimacy." Don't hold your breath for more Rosen love letters.
As David Bernstein writes at Volokh: "A Chief Justice getting praise from commenters like Rosen for avoiding getting the Court into a political tangle by strategically changing his vote will in the long-term cause the Court’s legitimacy to suffer."
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Jul '11
Re: John Roberts and the Legitimacy of the Court
The job of the Supreme Court is to follow the law, to interpret its application in accordance to the principles and spirit it was written in, especially in context of the US constitution. The job is not to create new laws or new principles or to strategize laws for the purposes of institutional legitimacy. If you are a Supreme Court Justice and have any confusion on how this is done I suggest asking Justice Clarence Thomas.
May '12
Re: John Roberts and the Legitimacy of the Court
I think SCOTUS lost much of its credibility beginning with the New Deal. I alwasy believed our three branches of government were a marvel of what enlightened leadership can do, but since the Sebelius decision I find myself asking - why do we need or have a SCOTUS if the answer is that whatever a majority in Congress can come up with and get rubber stamped by the White House is all that matters.
There are clearly no limits on power in the minds of Congress or the Executive, especially this century. Now there are apparently no limits from SCOTUS. Why keep them around?
May '10
Re: John Roberts and the Legitimacy of the Court
Why cannot we, as aggrieved citizens who are the source of power in the US, bring suit against Roberts for breach of his oath of office?
Jan '11
Re: John Roberts and the Legitimacy of the Court
Legitimacy shouldn't be confused with reputation. If Roberts changed anything to improve the Court's reputation, then by that same stroke he surrendered the Court's legitimacy.
I recall the scene from Naked Gun, when Leslie Nielsen is masquerading as the umpire. The first pitch is thrown, and they all turn to see what he's going to call. When he calls a strike, they all cheer. Because he enjoys the cheers, he calls strikes, no matter where the ball is.
Re: John Roberts and the Legitimacy of the Court
How is the legitimacy of one institution bolstered by its acquiescence in the illegitimate acts of another? Seriously, is there something in the water system inside I-495?
Apr '11
Re: John Roberts and the Legitimacy of the Court
I agree with Brent, the Supreme Court has been on a long lazy drift from legitimacy for some time now, mostly because of a sense of their own self-importance. Even when they get decisions right, like Brown V. The Board of Education they do it for the wrong reason, some contrived nonsense about social science. The great thinkers in Washington and elitist left wing institutions believe his decision secured the "institutional legitimacy' of the court, but beyond the narrow confines of the left his actions have done everything to de-legitimize the court. History will not be kind to Mr. Roberts, his late switch and his shoddy reasoning to save Obamacare will be used as evidence of the political class breaking free of its constitutional moorings.
Re: John Roberts and the Legitimacy of the Court
Beats me. The kernel of truth in Roberts' opinion is that courts are properly reluctant to strike down democratically-enacted laws. Thus, if it is really, truly unclear whether a statute is constitutional, then the thumb on the scale weighs in favor of upholding the statute. But Roberts went far beyond thumb-on-the-scale (in my opinion), he re-wrote the statute in order to uphold a law that the People's representatives never voted on.
Re: John Roberts and the Legitimacy of the Court
Adam Freedman
... But Roberts went far beyond thumb-on-the-scale (in my opinion), he re-wrote the statute in order to uphold a law that the People's representatives never voted on. · 1 minute ago
A law, I would add, that the people themselves were vociferously opposed to as evidenced by the polls and the fact that the legislators who voted for the law were fired by voters in 2010.
Jan '11
Re: John Roberts and the Legitimacy of the Court
Adam Freedman
But Roberts went far beyond thumb-on-the-scale (in my opinion), he re-wrote the statute in order to uphold a law that the People's representatives never voted on.
Very much agree. The principle that passed laws must be upheld if at all possible rests on the assumption that the passed law reflects the people's will.
But as Roberts himself showed in his examination of Verrilli at the oral arguments, the administration didn't portray the law to the people as a tax ... because if the law was portrayed that way, it wouldn't have passed. The law, as a tax, didn't represent the people's will.They knew it wouldn't have passed if presented that way.
That's why I'm drawing a blank as to why Roberts would then portray the law as a tax, when that was his own objection.
Aug '10
Re: John Roberts and the Legitimacy of the Court
Furthermore, how does the court gain 'legitimacy' by declaring the mandate constitutional when a large majority of the public believed it was not, and when the act itself was opposed by a majority of the public?
I suspect the 'legitimacy' Roberts was looking for was centered on the Washington cocktail circuit.
On Edit: I see you made the same point about public opposition.
Edited on July 17, 2012 at 11:10pmJul '12
Re: John Roberts and the Legitimacy of the Court
This is what really bugs me. The Founders quite deliberately designed the judicial branch in such a way that it would be insulated from popular opinion (justices are appointed rather than elected, they serve for life, etc.). The whole point is that the majority is not always right, constitutionally speaking. Somebody has to have the job of saying, "No, you cannot do that," and (since Marbury, anyway), that somebody has been the Supreme Court.
And yet Justice Roberts, in his opinion, says "It is not our job to protect the people from the consequences of their political choices." Isn't that statement overturning 200 years of precedent and legal doctrine?