What is John Roberts Up To?

 

Chief Justice John Roberts of the U.S. Supreme Court in 2005.Yesterday, a Washington Post review of Uncertain Justice: The Roberts Court and the Constitutionby Harvard Law professor Lawrence Tribe and his former student Joshua Matz, ended with this observation:

[T]here is one place where Tribe and Matz find real clarity [in the current Court]: the shrinking availability of judicial relief. “One of the defining features of the Roberts Court,” they write, is “its willingness to leave plaintiffs and criminal defendants to whatever justice they can find beyond its doors.”

Setting aside the liberal morality play rhetoric, a number of commentators agree that the Court has been passing on cases that it once would have taken — and not just on Tribe and Matz’s chew toys. For example, some conservatives lament that the current Court has declined to hear one Second Amendment case after another, leaving conflict and confusion in judicial ranks. Then again, business interests are confused that this year the justices declined to hear a class action certification case that seemed to scream out for high court attention. There was intense conflict among the circuits. The judges who authored the appealed decisions seemed, in their written opinions, to be thumbing their noses at very recent high court precedents. What is going on here?

Here’s my guess. The clue is the 2012 Obamacare cases. The focus on those cases has been the Chief Justice’s convoluted ruling, finding that the tax was not a tax before finding that it was a tax. I think the key point — a least for seeing what is going on now — was the numbers. Parts of the law were upheld 6-3. Parts were overturned 6-3.

It looks to me as though Chief Justice Roberts has been — and continues to be — concerned that 5-4 decision after 5-4 decision is undermining the Court’s standing with significant segments of the public. Thus in the ObamaCare cases he secured a break in the liberal ranks on one issue and himself broke conservative ranks on another. In other hot-button areas where he believes a 5-4 decision is inevitable, he pushes the Court to pass on the case.

As I say, this is a guess. But an educated one. We have a number of court watchers in Ricochet’s ranks: I would welcome critiques of this theory.

There are 13 comments.

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  1. Mike H Coolidge
    Mike H
    @MikeH

    That sounds way more plausible than “Robert’s super sneaky ploy to have Obamacare self-destruct, isn’t he so smart” explanation. No explanation would be satisfying for Roberts doing that to the American people, though. Until the law is made moot, he has used our liberty as a bargaining chip for his ends.

    • #1
  2. Valiuth Inactive
    Valiuth
    @Valiuth

    You know what hurts the legitimacy of the Supreme Court? The fact that they hand down unconstitutional twisted rulings.

    • #2
  3. Paul A. Rahe Contributor
    Paul A. Rahe
    @PaulARahe

    If this is true, it speaks ill of Roberts. We are governed by a lawless administration. And we have a Supreme Court too timid to do its job?

    • #3
  4. user_82762 Thatcher
    user_82762
    @JamesGawron

    Clark,

    If it was 5 to 4 and the left won the case do you think they’d care.  If Roberts can end the mandate now on the issue of the Tax originating in the Senate not the House, he will have redeemed himself.  If he can’t he will have condemned his Court to the ridicule of History.

    Regards,

    Jim

    • #4
  5. Sabrdance Member
    Sabrdance
    @Sabrdance

    It sounds reasonable and consistent with what he said at his confirmation hearings about wanting more consensus on the court.  However: it only takes 4 justices to hear a case.  What’s stopping everyone else?

    • #5
  6. Casey Member
    Casey
    @Casey

    My impression is more that Roberts is saying “stop bringing all your problems to us.” (Rather than any concern for concensus. )

    • #6
  7. jmelvin Member
    jmelvin
    @jmelvin

    Casey your thought was similar to my own when I read this post earlier this morning.  Some of those in the high court may be of the mind that citizens should learn to deal with the repercussions of their own elections.  If the electorate thinks they will find less relief in the courts, perhaps they will consider more seriously those who they elect and consider their own activity in the business of the government.

    • #7
  8. EThompson Inactive
    EThompson
    @EThompson

    Speaking as a civilian with absolutely zero legal background, it appears that Justice Roberts is more concerned with the image of the Court than the law. This is unnerving.

    • #8
  9. Valiuth Inactive
    Valiuth
    @Valiuth

    jmelvin:

    Casey your thought was similar to my own when I read this post earlier this morning. Some of those in the high court may be of the mind that citizens should learn to deal with the repercussions of their own elections. If the electorate thinks they will find less relief in the courts, perhaps they will consider more seriously those who they elect and consider their own activity in the business of the government.

     I disagree. What will happen is that it will encourage legal instability as any party in power will run roughshod over the Constitution to balance out past wrongs and injustices. By failing to take a stand the court is granting legitimacy to any and all political moves. Might as well say people will be more safe if we remove all police activity because everyone will have to be constantly vigilant against crime. 

    • #9
  10. Mike H Coolidge
    Mike H
    @MikeH

    Sabrdance:

    It sounds reasonable and consistent with what he said at his confirmation hearings about wanting more consensus on the court. However: it only takes 4 justices to hear a case. What’s stopping everyone else?

     The liberals don’t want to lose and the conservatives don’t want to cross Roberts?

    • #10
  11. ctlaw Coolidge
    ctlaw
    @ctlaw

    Perhaps neither side is willing to chance what Justice Kennedy will do.

    • #11
  12. Palaeologus Member
    Palaeologus
    @Palaeologus

    Okay, so we have a group of nine people with lifetime employment and little-to-no monetary incentive to be particularly productive.

    Any chance they’re just lazy?

    • #12
  13. user_340536 Member
    user_340536
    @ShaneMcGuire

    I dunno if you’re right or wrong. But it seems that cases leading to 5-4 decisions are just the sort of cases that need to go up, not the obvious 9-0 or 8-1 decisions—-except for the obvious 9-0 decisions that repudiate the 9th Circuit, those should still go up.

    • #13

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