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David Frenchism and the Supreme Court Decision
Over at National Review, David French has this to say about the Supreme Court decision preventing the administration from asking citizenship questions on the census:
Against this legal background, I believed that — like with the travel-ban case — a chaotic process would matter less than the very broad discretion granted the president by existing law. I was wrong.
Today, Justice John Roberts joined the four more progressive judges to reach a legal conclusion (articulated in a complex series of interlocking and competing concurrences and dissents) that roughly goes as follows: Including a citizenship question in the census is not “substantively invalid.” However, the Administrative Procedure Act applies, and it is “meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” Since the administration’s explanation for its agency’s action was “incongruent with what the record reveals about the agency’s priorities and decision making process,” the administration failed to meet its APA obligations.
The secretary of commerce had pointed to an assertion from the Department of Justice that the question would assist in voting-rights enforcement. To put it simply, the majority did not buy that explanation, finding that it was more of a rationalization: The secretary of commerce decided to include the questions, went hunting for a reason, and eventually got the DOJ to help.
Quite frankly, this sounds about right.
I’m starting to see what Sohrab Ahmari means about “David Frenchism.”
It may be that John Roberts found against the administration because he “did not buy that explanation, finding that it was more of a rationalization.” But that’s certainly not true of “the majority” in the persons of the four liberal justices. They found against the administration because the question concerning citizenship violates their progressive political values, and they would have voted in similar fashion whatever the administration’s argument and however sound it might have been. On one side, there are four leftists justices who vote as a solid body and use every opportunity, and every vote, to push leftism as far as they possibly can without respect to legal niceties. On the other, there are five conservative justices, who to varying degrees understand what is going on, but often think through cases as though they were deciding a homeowners insurance claim rather making fundamental decisions concerning the social and political direction of the nation.
In this case, Roberts voted against the administration because, essentially, they didn’t get the paperwork right. This is French’s “chaos.” He might be right about the chaos, but so what? The question at issue is whether the nation can take account of people’s citizenship status while enumerating them for such purposes as congressional seat apportionment. Naturally, the left wants every warm body counted regardless of citizenship status, since the more bodies they can get over the border, the greater their power grows. The four liberal justices get this and will always vote against allowing citizenship questions.
Until conservatives get it, they will never understand the struggle they are in. This doesn’t mean ignoring the law. It means using some judgment concerning what is truly important with respect to the law in the context of socially significant decisions.
I’m reminded of Sgt. Warden in From Here to Eternity in the scene where Pearl Harbor is attacked, and a corporal won’t let him into the armory because he doesn’t have the proper paperwork. Justice Roberts is that corporal.
Published in General
You made me laugh. You should find an image of that girl from the film and change your avitar to make it accurate.
I think you Trumpkins have a nub of an argument – Roberts has joined the Romney’s, the French’s, the Jonah Goldberg’s, the John Podhoretz’s etc that form the core of the no-integrity, RINO squish brigade. These despicable worms fail to perceive the all consuming majesty of the noble Trump. I think under any other President Roberts would have asserted the Supreme Court’s authority and shut down nationwide injunctions by Obama’s zealots on the district courts. He doesn’t do it because he feels it’s his job to defend the position of the judiciary, in the minds of the common folk, as above partisanship. You and I can call it boob bait for the bubbas, but Roberts does not want the average non-political junkie citizen to look at judges as Obama judges or correct judges. He is willing to push back when the courts are disparaged, as they were with this insulting tissue of lies that Ross tried to slip by them.
Stupid and insulting. Not a single person making this argument here.
Perhaps a bit insulting and I will try to control myself, but several comments have disparaged Roberts’ integrity because he won’t do Trump’s bidding in every instance. I disagree with Roberts; I think the district judges in Hawaii and San Francisco that the activists run to should be smacked down. I think this decision would have been decided the way we want it were it not for the extraneous issues put on it.
If this is indeed what Roberts is doing, he should be impeached. How do I know this? Bubba told me so.
Thanks. No one has ever called me brilliant about much of anything ever.
Nobody sees what John Roberts sees. SORRY, I WAS 1000% WRONG.
Listen to any of the podcasts here and all the Trump-hating conservatives see EXACTLY what John Roberts sees — which means they completely disagree with the actual conservative Constitutional justices like Thomas, Alito, Gorsuch, and Kavanaugh.
I wonder what type of fiery dissent Antonin Scalia could have written here. Even Kennedy, O’Connor, and Rehnquist might have sided with the conservatives here.
Well that is sort of what I think, which is that Roberts ruled the way he did because his dignity was offended. And that’s why I think that while he is not a bad man, he isn’t a great one either. A great one would have put his pride aside and recognized that it is perfectly legitimate and indeed necessary to ask about citizenship on the census, the incompetence and low character of the Trump administration notwithstanding. The Trump administration is the one we have, and when it does the right thing, even for the wrong reasons or in an insulting way, it should be supported. Especially when the issue at hand is as fundamental as apportioning representation, and in a time when progressives are flooding the nation with non-citizens in an attempt to remake the nation. Roberts is in one of the last, crucial positions that might still have the power to forestall the progressive tidal wave. Instead, Roberts chose to stand on his dignity, mistaking that for some sort of principled stand. It isn’t.
He didn’t say the question couldn’t be on the census, he said it had to go back and jump through the hoops correctly and honestly before it could be included.
A distinction without a difference.
What good are principles when you lose the country in the process? It is self-pride and pharisaical.
“Man was not created for the law, but the law was created for man.”
Words of Jesus as he and his disciples broke the sabbath.
If this was his reason, you JC are far more charitable than myself. If this was the reason, Roberts is a petty man that has no business wearing a robe.
And with this on the line, if refereed to reason is so. He has no dignity and is not worthy to work for the DMV. I blow my nose in his general direction.
Our difference is that you think this is a good thing, whereas I think it manifests a serious lack of judgment and perspective. We are in the midst of a concentrated campaign to remake the nation, and to destroy the constitutional order, part of which is to flood the nation with illegal aliens, force them to be counted in the census, and skew Congressional representation to “blue” regions of the country. Asking about citizenship on the census is a tool to at least slow this down, and is agreed on all sides to be substantively legitimate. But Roberts isn’t going to permit it because, as you say, they didn’t jump through the hoops correctly.
Sometimes there are larger things at stake. The paperwork is a means to an end, not the end in itself, and those like Roberts who can’t tell the difference are, to be frank, small-minded. Especially when we’ve seen in other cases, like the ACA, Roberts essentially throw out the paperwork to get his desired result.
And why should the stated reason even be important, as long as there is a good reason? It is sophistry and pedantry. It is a ridiculous opinion whose only result will be that every policy decision in the future will be accompanied by a very long laundry list of “reasons” which will range from whimsical to even more whimsical in the hopes that one of them will suffice for some pedantic judge as a good enough reason for the policy.
This is stupid, short-sighted, and dangerous. It’s becoming typical of the spineless and morally vacuous John Roberts.
I would never accuse you of being that kind of an optimist.
Indeed.
Typical of all anti-Trumpers, really. Turning against conservatism to own Trump. What is conservative about that?
Justice Roberts corrects chides Wilbur Ross’ dishonesty, and Trump advocates call on us to condemn Roberts? How about chiding Ross for his dishonesty?
How about doing both? I think I made clear in my comments that I am no Trump fan. Unfortunately, Roberts’s lapse is likely to have enduring and potentially irreversible consequences. That’s what I care about – not scoring points for or against Trump.
I don’t know who Ross is. I don’t care who Ross is.
Our census, which the Constitution requires in order to understand the electorate, is not able to ask if people are citizens. This is asinine. But the Court wants to punish the nation for the supposed sins of some obscure bureaucrat of some sort?
It’s so stupid, it really does make me wonder if Roberts is being threatened with blackmail. I give him credit for more intelligence than this.
Sure they are able to ask about citizenship if the Administration complies with the applicable law, namely the Administrative Procedures Act, and not by dictate.
We are a Nation of Law, not Men. Neither Trump nor Wilbur Ross rule by decree.
Follow the damn law, and don’t lie. This is not hard. But it requires a modicum of competence.
Good points. We are more similar than different; it is a judgment call, and I am on the Roberts/French side and you are more on the pragmatic side. Both are valid points of view.
Thank you for your reminder.
Blessings,
Gary
If we were a nation of law, then Roberts would have ruled differently.
There is a good biography out about Chief Justice Roberts. At his core, he is an Institutionalist, and there is a lot of good in that.
https://www.amazon.com/Chief-Turbulent-Times-Justice-Roberts/dp/0465093272/ref=sr_1_1?keywords=THe+chief&qid=1562002660&s=gateway&sr=8-1
They did follow the law. At least if you see things the same way that Thomas, Goursch, Kavanaugh, and Alito did.
Edit: Quoted the wrong post. Fixed now.
Best laugh I have had all day. We are a nation of laws. Tell me another one.
That one is even better. Keep them coming.
Gary:
I am very concerned with your acceptance of the proposition that Ross’s motivation was to suppress Hispanics from answering the census. I am aware of no evidence whatsoever of this proposition, and I read the entire SCOTUS opinion in detail. I think that this is a Left-wing lie, which is their general practice — to impugn the motives of all who disagree with them.
If there was actual, legitimate evidence that Ross’s express purpose was to suppress the count of Hispanic residents, I doubt that the other 4 Conservative Justices would have upheld his decision.
I think that the problem was the way the issue was framed. It appears true that Ross, from the moment of his appointment, wanted to add a citizenship question to the Census. So what? The radical Left accuses him of having a racist motive, but that’s the accusation that they cynically use against everybody with whom they disagree.
What is infuriating is when supposed conservatives — like you, French, and the Chief Justice — side with them on it. Sorry, buddy, you’re driving me nuts! (Though not enough to rescind my dinner invitation to The Parrish, when you’re next in Tucson!)
So Ross wants to ask about citizenship, because he thinks there are good reasons to want this information. I agree with him. Then he runs into the complexity of the relevant statutes, and it appears (at least arguably) that he needs some legitimate justification. He instructs staff to look for one, and they find it — enforcement of the Voting Rights Act. Hurrah! So they apparently raise this with DOJ (responsible for enforcing the VRA), and they get a letter from DOJ asking them to include the question.
To me, this looks like a perfectly legitimate governmental action, like a lawyer looking for evidence that will bolster his case.
But then Ross is apparently brought before Congress to testify to his motivations. I haven’t reviewed the testimony, and it’s only summarized in the SCOTUS opinion. He apparently claims that the DOJ request was the basis for his decision.
Frankly, this may well be true, in the sense that it was the ultimate reason for his decision. This is consistent with his desiring to ask the question before the DOJ request, for other (legitimate) reasons.
[Cont’d]
[Cont’d]
It is my impression that Ross’s testimony could be interpreted as false, though my suspicion is that it is more ambiguous than presented. I think that this was genuinely the motivation of the Chief Justice — that he was convinced that Ross had lied in sworn testimony, and even though the lie was immaterial to the outcome, he was unwilling to allow this to stand.
This sounds all honorable. I do not think so. I think that the Chief Justice — and French — and my buddy Gary are being hopelessly naive, in a way that plays directly into the hands of the malicious Left.
Here is their playbook.
If you don’t like a decision, accuse the decision-maker of having a bad motive. Even if the decision is perfectly permissible, and even if there are legitimate motives that would support the decision, castigate this particular decision-maker as an evil person.
This is precisely what was done by the Left in the Muslim ban and Census question cases.
Then the Frenchian collaborators kick into action. They self-righteously demand complete transparency in the decision-maker’s efforts to rebut the — frankly irrelevant — accusation of a bad motive. I say “irrelevant” because the decision is permissible by a person with a right motive. It is only rendered impermissible by the hypothetical bad motive.
French’s article states:
But there’s not evidence of racial animus. There’s an accusation of racial animus — which the Leftists will make every single time about everything!! — coupled with the Frenchian (and Robertsian) insistence that the accused prove his innocence.
This strikes me as hopelessly naive, at best. Collaborationist, at worst. The term “useful idiots” comes to mind.
It is very, very troubling to me to find myself thinking such things about the Chief Justice and Mr. French, who I have greatly respected in the past. I think that I still greatly respect them.
Perhaps it’s like the Wizard of Oz — he was a very good man, but a very bad wizard.
WC, this is not correct. The purpose of the Census is to count persons in order to apportion representation. The Constitutional text (in Art. I, Sec. 2) is:
I think that it would be advisable to change this to apportion representation by citizenship, but this has not been done.
Oh, dear Lord. This is the basis of the “lie” accusation??? God save us. Because Justice Roberts and David French surely won’t.