Tag: John Roberts

Join Jim and Greg for three crazy martinis today! First, they wade into the battle over how schools should open, with President Trump and teacher unions unsurprisingly on opposite sides of the debate. Jim offers a highly entertaining theory on how a recent head injury may explain some of his troubling decisions. And they have a lot of fun dissecting the new presidential campaign of Kanye West.

Ilya Shapiro joined host Ben Domenech to discuss the meaning and impact of recent Supreme Court decisions. Shapiro serves as the Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, and he recently wrote a new book, “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.

Shapiro observed that Chief Justice John Roberts is trying to push back against the idea that all Supreme Court justices must vote along their own party lines. Roberts thinks that by acting strategically, he is legitimizing the court in many people’s eyes. Shapiro argued, however, this tactic has garnered little respect for Roberts.

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Josh Hammer and Garrett Snedeker argue that it’s time for conservatives to adopt a more confrontational attitude toward rogue decisions of the Supreme Court. In Newsweek, they write:  A case as wrongly decided as Bostock would, in an earlier era, have immediately triggered the equivalent of constitutional “antibodies.” Congress would bring forth bills to limit the scope […]

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Join Jim and Greg as they applaud South Carolina Sen. Tim Scott for a pragmatic approach to police reform and for rightly hammering the Democratic characterization of his legislation as a “token” approach. They also rip Chief Justice John Roberts for siding with the four liberal justices in blocking the Trump administration’s effort to end DACA, which was unconstitutionally created in the first place. And they wade into the ugly back and forth between President Trump and former National Security Adviser John Bolton over Bolton’s scathing new book.

How Kind: Thinking Well of McConnell and Roberts

 

“…Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

— Nominee for Chief Justice, John Roberts, before the Senate Judiciary Committee, 2005

Inflaming public passions against a party, particularly a criminal defendant, and encouraging prosecutors to vastly increase the charges against him, is the very antithesis of calling balls and strikes.

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E. and I missed the House impeachment proceedings. We scouted every upscale marina on the Potomac but failed to locate a skiff large enough to accommodate the horde of Adam Shiftless’s secret witnesses. I vowed to do better for the Senate trial. I hired some former Blackwater guys to tail Fatty Nadler as he slow-waddled […]

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The Census Case and Our Radical Chief Justice?

 

I’ve been thinking further about the Chief Justice’s opinion in the Census case, Department of Commerce v. New York (full opinion here). I am concerned that his opinion may reflect a truly radical and dangerous idea, in a way that he may not have considered. Though frankly, this seems unlikely, as he is an extremely intelligent and experienced lawyer and judge.

I find the Chief’s reasoning very troubling, and his rationale was shared by none of the other eight Justices. The Chief thought that the substantive decision made by the Secretary of Commerce — to include a citizenship question on the census long form — was perfectly permissible as a general proposition. However, the Chief thought that the possibly bad motives of this particular Secretary made the decision impermissible.

Richard Epstein looks at a recent Supreme Court ruling that could have major implications for when and how religious institutions can access public money.

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Reminder: Sean Spicer just Tweeted: “On Monday Associate SCOTUS Justice Kennedy will administer the oath of office to Judge Gorsuch in the White House Rose Garden at 11am ET” The more I read about Neil Gorsuch’s history, the more convinced I have become that he, at some point in a hopefully long Supreme Court career, […]

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Profiles in Cowardice

 

Back in 1919, William Butler Yeats wrote a poem called “The Second Coming,” which began with the following verses:

Turning and turning in the widening gyre
The Falcon cannot hear the falconer.
Things fall apart, the center cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

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I’m aware this post is not as timely as it would have been last November, but I’m eager to hear the Ricochet community’s thoughts. Last November, a few campus rabble rousers across the country delivered a wakeup call: institutions of higher learning are not doing enough to atone for the largely racial sins of the […]

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On Judicial Incoherence

 

In Case of TyrannyThe primary difficulty is in knowing where to start. A consistent run of luck continues to have me in the driver’s seat of an 18-wheeler when news breaks that our philosopher-kings on the Supreme Court have hurled yet another thunder bolt toward the benighted masses for the purpose of jolting us from our fixed creeds and established truths, directing us to trade in the accumulated wisdom of human experience for the latest epiphany of a gaggle of lawyers.

I was somewhere between Memphis and Little Rock, navigating potholes that Evel Knievel would have used ramps to cross, when I learned that Chief Justice Roberts’ restless mind had pondered the words, “established by the State,” and discovered that they actually mean, “not established by the State.” “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” explained Roberts. Uh huh. Well, yes, and Congress passed the National Prohibition Act of 1919 to ban the sale of alcoholic beverages, not to midwife organized crime, but it is not the legal prerogative of the Supreme Court to protect the legislature from the effects of its own laws.

Besides, if the Chief Justice wanted to deduce the intent of the Affordable Care Act in this regard, he had merely to consult the words of its architect, Jonathan Gruber, who said in 2012, “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. …I hope that’s a blatant enough political reality that states will get their act together…” But robed demigods are not interested in the intent or the plain meaning of the words, “established by the state.” Instead, Roberts’ focus was fixed on salvaging what Mark Steyn calls the “push-me-pull-you” monstrosity of Obamacare rather than his solemn duty to determine the constitutionality of the law as written. So he engaged in intellectual high jinks, literally rewriting the law (as he previously did when changing “penalty” to “tax”), and performed such mental gymnastics as required to affirm for the second time your fundamental right to be subservient to the federal government in matters effecting your health and, indeed, your life and death. Thus passeth another late June morning in post-constitutional America.

The Libertarian Podcast: The Supreme Court and Gay Marriage

 

Still hungry for more razor-sharp constitutional analysis after yesterday’s Law TalkYou’re in luck. We’ve got a double-shot this week, as Professor Epstein also weighs in on the Supreme Court’s gay marriage decision in Obergefell v. Hodges in the new episode of The Libertarian. And the conversation here is a little different — for instance, Richard discusses whether Chief Justice Roberts has any discernible judicial philosophy and whether Rand Paul’s suggestion that we get government out of marriage altogether is practical. It’s all available by listening in below or by subscribing to The Libertarian via iTunes or your favorite podcasting app.

Is Polygamy Next?

 

shutterstock_124665844-2John Roberts seems to think so. From his dissent in Obergefell:

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

He continues:

SCOTUS and the Age of the Imperial Judiciary

 

In the Philadelphia Inquirer, my hometown paper, I critique the Supreme Court’s decisions on gay marriage and Obamacare. As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process? Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.

Indeed, the political nature of Obergefell becomes readily apparent in the contradictory, vague logic of the majority opinion by Justice Anthony Kennedy. The holding fits within none of the established precedents governing the due-process and equal-protection clauses. Kennedy says marriage is a fundamental right, but he admits that American society had long understood that right to be only between a man and a woman. He suggests that the right to equality may require gay marriage, but gays do not receive the heightened constitutional protection reserved for racial and religious minorities. Kennedy could have recognized that gays should receive the same protections against discrimination as gender, but he could not because recognizing sexual orientation as a protected class might open up a Pandora’s box of new constitutional claims by every self-defined group.

The “SCOTUScare” Travesty

 

shutterstock_270314624I hope to get to the SSM decision in a later post, but for now let me recap the result in yesterday’s decision in King v. Burwell: Obama 1, Rule of Law 0. I have a slightly longer analysis over at City Journal, but here’s the gist.

By a margin of 6-to-3, the Court upheld an IRS rule that supposedly implements the Affordable Care Act — Obamacare — by extending health insurance tax credits to taxpayers in states that have no health insurance exchange of their own, but rather rely on the federal healthcare.gov exchange. The problem with this rule, as the plaintiffs in King pointed out, is that it flatly contradicts the ACA. The statute clearly limits tax credits to taxpayers who use state insurance exchanges, not the federal one. A majority of the Court, therefore, simply rewrote the ACA.

This should have been an easy case. Obamacare provides two different mechanisms for establishing a health insurance exchange. A state can establish an exchange under Section 1311 of the Act. And in states that “fail” to establish an exchange, the secretary of Health and Human Services must establish an exchange under Section 1321. When discussing eligibility for those all-important tax credits, the ACA says that they are available only to taxpayers who enroll in a qualified health plan “through an Exchange established by the State.”

What Justice Kennedy Got Wrong in the Obamacare Oral Arguments

 

In my new piece for Defining Ideas from the Hoover Institution, I’m taking readers through the Supreme Court’s oral arguments last week in the case of King v. Burwell, which will decide the fate of Obamacare subsidies in states that are serviced by a federal health insurance exchange. (I also covered this topic at length in Libertarian podcast with Troy Senik last week.) As I note there, perhaps the most inventive (and alarming) argument of the day came courtesy of Justice Anthony Kennedy:

In one sense the most novel argument of the day was an ill-thought-out suggestion by Justice Anthony Kennedy that the ACA might be unconstitutional if it were read to deny subsidies to health care policies purchased on the federal exchanges. Justice Kennedy never bothered to state whether his suggestion would require invalidation of the entire statute, or the creation of a massive subsidy that Congress itself had never authorized. There is, fortunately, no need to choose between these two unappetizing alternatives. Kennedy tossed off an argument that no one ever raised throughout the litigation: the denial of the federal subsidies would coerce individual states to set up exchanges in order to benefit their citizens.

Half a Win on Supreme Court’s Affirmative Action Ruling — John Yoo

 

Most conservatives were probably happy with the news of yesterday’s Supreme Court decision in Schuette v. BAMN, which upheld Michigan’s state constitutional ban on affirmative action. The plurality opinion, however, should curb their enthusiasm.

Written by Justice Anthony Kennedy and joined by Chief Justice Roberts and Justice Alito, the plurality treated the case not as one about a color-blind Constitution, but as a political process issue. They essentially reduced the question to whether Michigan was within its rights to enact the ban through a ballot initiative. They found that it was — but suggested that a state could also legitimately use the exact same process to reach the opposite outcome.