Linda Greenhouse is an astute observers of the U.S. Supreme Court, so when I see her byline on an article, I read it carefully. Last Sunday, she provided an 18-year overview of the Roberts Court,— providing readers with a chilling description of what Americans have lost since John Roberts assumed the position of Chief Justice.
Greenhouse noted that the just-completed term was in many respects the capstone of Roberts’ 18-year tenure. As she writes,
To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.
When Roberts joined the Court, Greenhouse says there was a “robust conservative wish list.” She then enumerates the items on that wish list: overturning Roe v. Wade, reinterpreting the Second Amendment in order to turn gun ownership into a constitutional right, the elimination of race-based affirmative action in university admissions, the elevation of religion within the legal landscape (Greenhouse doesn’t say it, but what was wanted was the elevation of Christianity–not just “religion”)–and a drastic reduction of federal agencies’ regulatory power.
Despite the fact that William Rehnquist, the prior Chief Justice, was a committed conservative, the Court had not accomplished a single one of those goals. Greenhouse describes the case decisions that had failed to accomplish that conservative wish list– establishing precedents that would seem to preclude their realization.
That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.
t’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”
Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.
Lawyers point out that the major questions doctrine was invented out of whole cloth; it is certainly nowhere to be found in the Constitution or prior case law. Greenhouse notes its utility to a rogue Court: “how to tell a major question from an ordinary one? No surprise there: The court itself will decide….it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.”
You really need to click through and read the entire essay, because Greenhouse does a masterful job of explaining the disingenuous reasoning that allowed the Court’s majority to impose its reactionary policy preferences while ignoring “settled” law.
The web designer case was among the most egregious:
The court has created a religious opt-out from compliance with laws that govern the commercial marketplace…. [Gorsuch’s] opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.
But none of those precedents are relevant, because none involved discrimination by a commercial entity.
The essay concludes that the Court “has become this country’s ultimate political prize… from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.”
Absent a Blue wave in 2024, it will only get worse.
I would add Citizens United (2010) to the list, where the Robert’s Court declared corporate campaign contributions to be free speech under the First Amendment.
I agree with Linda Greenhouse’s assessment of the Roberts Court. The Court has become a political prize, and the conservative wish list has shaped its decisions. This is evident in the Court’s decisions on abortion, gun rights, affirmative action, and religious liberty.
The Court’s decisions on these issues have profoundly impacted our lives. They have made it more difficult for women to access safe and legal abortion care, easier for people to obtain guns, harder for Black and Brown students to get into college, and allowed businesses to discriminate against LGBTQ people and other marginalized groups.
The Roberts Court is a major obstacle to progress on a number of important issues. If we want to protect our rights and freedoms, we must elect a Democratic President and Congress in 2024.
Written by BARD AI
“The essay concludes that the Court “has become this country’s ultimate political prize… from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.”
Weigh Roberts’ 18 years against Ruth Bader Ginsburg’s 27 years and the loss of rights since her death September 18, 2020; you will see the reason she remained on the Supreme Court until she drew her last breath under the term of her lifetime appointment. It was to balance out votes and prevent the takeover by the now ruling Christians (Catholics) forced onto SCOTUS by Trump and McConnell, against Constitutional requirement of “during good Behavior…”, which gave Roberts his ruling majority.
Justice Ruth Bader Ginsburg is one reason to maintain lifetime appointments to SCOTUS and
“inferior Courts” against the growing list of sitting reasons to end those lifetime appointments which is fulfilling that “robust conservative wish list.” Her death appears to have accelerated Trump’s White Nationalist, MAGA, Freedom Caucus hold on Congress and the Judicial system to an unimaginable extent and is continuing to accelerate via the slim majority in the House.
“Absent a Blue wave in 2024, it will only get worse.”
The Supreme Court has always been moved by the winds of the political landscape. In the mid 1800s the court didn’t outlaw slavery as one would like to think it would have. It took a progressive Republican President in the middle of a Civil War to politicize slavery and give the conflict an added purpose although it had previously debated that all men should be equal. Today the science behind abortions is being utilized to sway younger peoples minds and polls show that landscape is changing ever so slightly overtime. Just 14 years ago this article on the Supreme Court and its purpose was written. There are many others but to show what people thought about the court is prevalent to how we our representative government which appoints our judges.
I found this article helpful to understand where we were a little over a decade ago.
https://harvardpolitics.com/legislating-from-the-bench/
A blue wave in 2024 by itself will not stem the tide of oligarchy control over the country. What is lacking, what has been lacking, has been the political will to openly call out and fight the liars, the thieves, and insurrectionists wherever they reside.
A large dose of liberal radicalism is long overdue. Sheldon Whitefoot, Katie Porter and Elizabeth Warren cannot do it all.
Does this mean the Republican party has fallen to the ultra-conservative bait-and-switch for decades. If so, it’s the classic con-game – “pay no attention to the man behind the curtain.” Direct your attention to this hand, while the other performs the trick. QAnon, the Deep State, and other grifter tactics seem to have worked exceedingly well. It’s time to clear the money-changers out of the Temple.
This radical rogue court has defiantly been telling the rest of us that they have the power to bend the rules and break the laws to achieve the outcome they personally want and there is nothing we can do about it. They are completely insulated from any repercussions. Creating lifetime appointments for supreme court justices was probably the biggest mistake the founding fathers made. I believe they should have known better because they knew what it was like to have to deal with radical people.
Re JoAnn’s comment about Ruth Bader Ginsburg. I was thinking about her choice to stay on the supreme court as her health continued to decline and believe she should have retired while President Obama was in the middle of his second term to enable him to replace her with another reasonable fair-minded justice.
While I had great respect for Justice Ginsburg, I believe she was playing Russian Roulette with her seat on the bench after suffering multiple serious health issues.
The point that we all have fallen for is the wish that Supreme Court Justices could rise above their upbringing and their culture and read the law of the land dispassionately and determine the thoughts behind the words unerringly accurately. That is simply not possible for humans to do.
We somehow feel that we can label them conservatives and liberals and yet they will not represent those prejudices in their judgements.
A. I. could, but not humans.
So, until we are ready to amend the Constitution to a different Judicial Branch design our freedoms that stem from liberal culture will become more and more limited.
“Blue Wave” fix SCOTUS? How???? Gimmie a …..
The Roberts’ SCOTUS has simply submitted to the White Nationalist, self-proclaimed evangelical Trumpism judgements rather than address the source of the issues at their base. No pain for their gain; simply submit to the right wing conservatives.
As Theresa stated; “A large dose of liberal radicalism is long overdue.” Someone pointed out to me that my yard signs, “Joe Hogsett for Mayor”, “For the love of God, anyone but Trump” and “Pence Must Go” are why neighbors have ignored me since 2016. But the “Bernie Talkers” on Facebook pointed out that my yard signs are letting those who agree know that they are not alone. I gotta be me; even knowing I am in the cross hairs of the locked and loaded, armed neighbors who no longer post “Trump for President” yard signs but will vote for him along with those in House and Senate who support him with their silence knowing SCOTUS will back them up.
It’s a truly sad time when several Republican-appointed Justices lie through their teeth at their confirmation hearings while having their agenda set by the Koch-funded Federalist Society. Scalia? He was a co-founder of that egg nest of radical right-wing-ism. Ginsberg had the class and dignity to play Scalia in order to save the court’s face from the egregious, gobbeldy-gook opinions that he wrote. You have sleep issues? Read Scalia’s opinions. ZZZZ! Except that they are dangerously close to sedition.
Rick Wilson, one of my favorite political commentators has presented a phrase that I will para-phrase: EVERYTHING REPUBLICANS TOUCH DIES. Now we’ve let the fetid noses of radical, right-wing ideologues under the tent of our beloved nation where they will continue to wreak havoc on the future of the laws of this land. It’s who and what they are. Republicans are NOT conservatives. None of the Republican-appointed Justices are conservative. They are backward-thinking, right-wing reactionaries whose holy mission is to create the basis for a fascist dictatorship.
Please let the coming events prove me wrong. Until these awful people are replaced by rational, fair-minded jurists, we will continue our journey into social purgatory.
I’m glad I’m old.
Nancy; you must have forgotten that McConnell ignored his Oath of Office to uphold the Constitution by denying hearings on all of President Obama’s nominees in the federal court system.
What can we do? Let’s try defining “during good behavior…” to start. Is there anyone out there who thinks “good behavior” includes taking gifts whose value exceeds your annual salary? Even the idea that you must recuse from any case that might seem to involve your friends or family, much less those who give you gifts, should be the law! The punishment for breaking such laws should be removal from the court, after a second or third conviction.
Lester–The ability to reform the Supreme Court, as has been EXTENSIVELY discussed here and throughout the media–depends entirely upon the ability of Congress to propose and pass those modifications. Scholars have proposed expanding the Court for years, not because of its current “off the rails” behavior, but because of workload issues. Others have pointed out that extended lifespans make term limits advisable. Again, it would seem to be self-evident that none of this will happen absent a Blue Wave.
With every decision handed down in favor of “religious freedom,” those of us who aren’t Christian (evangelical/Catholic) lose our religious freedoms. I’m sure the irony is not lost on SCOTUS—no doubt, it’s intentional. Trump was a means to an end, and the Roberts court was the end in sight.
I agree that we desperately need a blue wave and working to achieve one is our best bet to get the U.S. back on a stable, progressive path. I think we have started to turn the corner. Now we must double down on all we can do to raise that blue wave.
Sheila et al….folks much more expert than I (at current predictions) suggest that a ’24 “Blue Wave”, , would AT BEST be Biden squeaking by, a tiny majority in the Senate and less of gap, but still a minority in the House. So how is that going to make SCOTUS change??? Time to get real.
If liberals represent the majority culture here, which I personally believe like our founders did to be true, we have to vote like it.
The states where it’s not true, as was the truth for the founders when they wrote the Constitution, will have to stew in their own juices at least for now.
What’s most important is to hold the Union together as long as possible and hope whatever follows that is more sensical than the previous time.
Lester. Giving up isn’t a winning strategy. What do you suggest we do?
Sharon,
Completely agree! That is the whole premise of the project I have been managing for the last 6 years, CommonGoodGoverning. We look for “laser” opportunities to make a difference; not “Vote Blue”.
Prior to now, our whole focus has been on electing servant leaders to the US House, folks willing to put country over party and/or ideology. In November, 2018 we helped elect four of them: Conor Lamb (PA), Elissa Slotkin (MI), Dean Phillips (MN), Elaine Luria (VA). In 2020, we added Kathy Manning (NC) and Carolyn Bourdeaux (GA). Last November, our guy, Adam Fritsch, came within 500 votes (out of 320,000) of taking down Lauren Boebert in Colorado.
Thanks to vicious gerrymandering in 2022, there were many fewer competitive races and we failed to elect any of the 7 folks we found (Adam came close!). Right now, we are hoping to prevent a “trifecta” in VA by swinging a few state races this November.
We have no website. Sheila can tell you how to reach me to learn more.
when bush,king geo the 2nd, slammed thru in congresses off season,to instate roberts as chief justice,only then i looked into his background. there was a reason beyond Iraq. oil, big buisness and corp rule. displacing the population as a whole for the few. text law as he once said was his forte. BS is also his forte. allowing his cohorts to write opinions as foul as he interpits his own, shows a disdain for the rights we all fought for,died for and live for, to be his hand wringing for the upper class. bush should have been stopped in his tracks when he even suggested him as a bench sitter.
I listened to the Deja News podcast this week which covers historical events similar to events of today, this week was how Poland moved from a vibrant democracy to autocracy by the party in charge packing the courts. When our SCOTUS decides the outcome it wants ( or at least the fascist judges do ( they aren’t conservatives anymore, time to retire that inaccurate term) and back fills here we are.
JoAnn:
for years i had a free hog roast/BBq for my trumper neighbors,thats 99% of the population here in NoDak. upon entering my farm site,theres a Bernie 2016 banner,on the fence line you cant miss.
i didnt allow political discussions,and none were made to ever while we all enjoyed couple a hundred pounds of smoked hog and briskets, corn on the cob free. about 60 people showed.
a few years back,
someone asked wheres the donation can? nope.
they asked why?
its your tax money you paid to help people thru the covid,,,
that extra $300 a week bud, thanks for helping out, its your return.
enjoy..
A little off topic, but I recently received an email from Keith Potts announcing his intent to run against Jim Banks for Senate. I like Keith and wish him well but I, and this is the reason I am still an “Independent”. I have been extremely disappointed with the the fact that I have not seen any really, really impressive and dynamic person emerge to help create by example any kind of “Blue Wave” in our reactionary state. I would love to help a candidate counter the ugliness of Indiana politics but I am too old to spend my energy pissing in the wind. I have high hopes for 2024, but unfortunately not so much in Indiana unless a clone of Gretchen Witmer or similar materializes out of thin air.
Jeff: Please see my previous endorsement of Marc Carmichael athttps://sheilakennedy.net/2023/06/a-fighting-chance/
Potts is not going to go from the City Council to the Senate–and in red Rural Indiana, he isn’t going to garner many votes.
I don’t see how the major questions doctrine and the doctrine of stare decisis can co-exist; nor do I understand that case law can be overriden by mere abandonment. Roberts, who is presiding over a law-making rather thanlaw-interpreting organization, recently responded to pubic outrage over Dobbs by telling us to shut up in view of the constitutional Separation of Powers (which presumably immunizes the court from criticism) all while violating such Madisonian Separation himself in making law in a “Physician, heal thyself” situation, a situation in which the court itself enjoys the final definition of terms.
I am not sure a Blue Wave will solve this problem but I am sure a Red Wave won’t. I’m thinking a four-justice addition to the court. Drastic? Sure, but why suffer more Dobbs and Citizens United on our road to Magaland? Drastic situations require drastic responses.
Jeff Neufer; then cast your Independent vote AGAINST Jim Banks. Unimpressive and non-dynamic is better than crooked politicians every time.
A good analogy, Rip Van Winkle –
The Republicans were appalled that Earl Warren turned too “liberal” and decided to only nominate young ideologues – more so as time passed
The Democrats were appalled that Byron White turned too “conservative” and decided — to appoint more “moderate” Justices (according to retired Judge Richard Posner, always more conservative than the Justice they replaced)
The Republicans ran on “fixing” the courts and their voters cheered.
Whenever the Democrats mentioned the courts – they heard Rip Van Winkle snoring.
A documentary of the Roberts court, base on Greenhouse’s article (especially highlighting Dobbs)could be subtitled “while women slept”. — or “while liberals slept” – the later less catchy, but more accurate
You may not approve of Republicans, but they are effective. Unfortunately, Republicans lack a formidable opponent. The Democratic Party has become a self-licking ice cream cone. To the point where Democrats conduct themselves as the Washington Generals to the Republican Globe Trotters.
Thank you Sheila. I went to your blog describing Jennifer McCormick and Mark Carmichael. I guess one of my problems is that I just don’t read local news. I read the Washington Post and the New York Times and spend too much time watching MSNBC and probably wouldn’t know if there was a shiny star here in Indiana. So why is Potts running if Mark Carmichael is?
And rest assured, being an Independent does not mean I won’t vote for even a milk toast opponent to Jim Banks or Mike Braun.