Tag Archives: John Roberts

Justice Roberts Knows Better

Constitution, , ,

Survey research has shown a sharp increase in the number of Americans who have very negative opinions of the Supreme Court. In response to that research, Chief Justice Roberts recently delivered an admonition: “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Really, Justice Roberts? Were you able to deliver that pearl of wisdom with a straight face?

As a number of pundits have noted–and as Roberts certainly knows– the dramatic drop in approval isn’t a consequence of unpopular results. It’s a consequence of the shocking dishonesty of the reasoning used to achieve those unpopular results, and the blatant illegitimacy of the processes that seated political/religious ideologues on the Supreme Court bench.

One of the most incisive responses to the Chief Justice’s weak defense was written by (formerly Republican) Jennifer Rubin, in the Washington Post.

Rubin correctly characterized Roberts’ remarks as unprofessional “whining,” noting that “no court was more heavily criticized than the Warren court.”

Yet you did not hear a constant drumbeat of complaints from the justices themselves. They let their opinions and history do the talking — an approach the current court, which is widely and correctly seen as partisan and peevish, would do well to follow.

After noting that Roberts “really doesn’t get it,” and marveling about the degree to which the current court is “utterly and completely tone-deaf to its role in the destruction of its own integrity,”  Rubin  issued a withering critique that pinpointed the reasons this Court is so widely–and correctly– viewed as illegitimate:

Roberts would rather not address the root of the court’s credibility crisis: its conservative members’ blatant disregard of nearly 50 years of precedent, their misuse and abuse of facts and history, their penchant for delivering public screeds in political settings, their misleading answers in confirmation hearings, their improper use of the shadow docket, their prior placement on the shortlist of potential justices by right-wing dark-money groups attempting to transform the judiciary, their opposition to adhering to a mandatory code of judicial ethics — and a refusal by Thomas to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, despite the anti-democracy activism of his wife, Ginni.

And let’s not forget: The court got its 6-3 supermajority largely through GOP hypocrisy and Congress’s refusal to take up the nomination of Merrick Garland in the last year of Barack Obama’s presidency.

Rubin’s column quotes a number of highly respected legal scholars who have been appalled by highly politicized decisions issued by this court.

It is true, as Rubin acknowledges, that Roberts didn’t author the most egregious opinions, but he has joined them. Rubin identifies the abortion ruling in Dobbs, the prayer-in-schools ruling in Bremerton, and the Brnovich decision on voting rights, written (again!) by Alito–a decision that Norman Ornstein accurately criticized as blatantly ignoring the plain language of the law and rewriting it to fit his “partisan and ideological views.”  She also quotes Ornstein’s observation that Roberts has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

Rubin quotes Stephen I. Vladeck, a law professor at the University of Texas saying  “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?” The operative word in that quote is “principled.” Americans respond very differently to Supreme Court decisions with which they disagree when they can see that those decisions were principled exercises in legal analysis rather than obvious distortions of facts and precedents employed to reach a preferred result.

Americans will also respond differently to decisions that expand American liberties rather than  reverse them. This Court is the first in U.S. history to constrict, rather than enlarge, individual liberty. When it removed a constitutional right that Americans had relied upon for  fifty years through a historically dishonest and legally-tortured decision, the Court focused  a glaring spotlight on its own illegitimacy.

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

Good proposals, but they will only be possible if large majorities of Americans vote Blue in November.

 

Free Speech For Those Who Can Afford It

Constitution, Free Speech, , ,

When John Roberts was elevated to the Supreme Court, my concerns weren’t focused on his likely conservative/ideological rigidity. (That was —and remains–my concern with subsequent Justices.) My “reading” of Justice Roberts was that he would instinctively side with power and authority–that he was likely to be pro-government and pro-business elite in situations calling for more searching inquiry into the equities involved.

I am not happy to report that my concerns were well-founded.

Roberts is solicitous when it comes to the rights of American elites. The defense of corporate “free speech” rights in Citizens United required an airy disregard of the foreseeable consequences of that decision for the electoral system. The opinion simply ignored the issue of disproportion, disingenuously equating the free speech rights of everyday citizens with the free speech rights of those who have massive resources at their disposal.

The problem began when the Court equated money with speech, and in Citizens United and several subsequent cases, it has steadily chipped away at McCain-Feingold restrictions meant to level the political playing field.

A few days ago, Len Farber reminded us of the quote from Anatole France that is perfectly applicable here: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The most recent example of this sanctimonious and dishonest approach to the constitutional right of free speech came in a case brought by the odious Ted Cruz.

The case challenged a law limiting the amount of campaign funds that can be used to repay personal campaign loans to $250,000.  In a decision further weakening campaign finance regulations, the court held that a federal cap on candidates’ use of political contributions after an election to recoup personal loans made to their campaign was unconstitutional.

Roberts wrote the majority opinion, protecting the “free speech” rights of candidates with the resources to lend their campaigns enormous sums. Justice Elena Kagan cut through Roberts’ “free speech” pose to zero in on the real issue.

In her dissenting opinion, Kagan criticized the majority for ruling against a law that she said was meant to combat “a special danger of corruption” aimed at “political contributions that will line a candidate’s own pockets.”

In striking down the law today,” she wrote, “the Court greenlights all the sordid bargains Congress thought right to stop. . . . In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute.”

Indeed, she explained, “Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption — the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

Even if we give Roberts the benefit of the doubt–if we assume that, from his lofty perch, he really doesn’t understand how the political “real world” works–it’s difficult to understand this decision. (Former Congressman Lee Hamilton used to say that the Supreme Court would benefit greatly from fewer Ivy League graduates and more Justices who had run for county sheriff–people who understood the gritty realities of political life.)

Cruz argued that “by substantially increasing the risk that any candidate loan will never be fully repaid,” the law forces a candidate to think twice before making those loans in the first place. The underlying assumption of his argument, of course, is that “serious”candidates for office are wealthy enough to self-finance their campaigns. This decision allows those wealthy candidates to do so without risking an actual loss of some portion of their funds, because they can now recoup the entire amount from post-election campaign fundraising.

As the Deputy Solicitor argued, the law “targets a practice that has significant corruptive potential.”

“A post-election contributor generally knows which candidate has won the election, and post-election contributions do not further the usual purposes of donating to electoral campaigns,” he said.

Campaign finance watchdogs supported the cap, arguing it is necessary to block undue influence by special interests, particularly because the fundraising would occur once the candidate has become a sitting member of Congress.

As one election law expert commented, “the Court has shown itself not to care very much about the danger of corruption, seeing protecting the First Amendment rights of big donors as more important.”

As an Atlantic  newsletter concluded: campaign-finance regulation in the U.S. has all but vanished.

This decision is more evidence–as if we needed it– of a Court that has lost its way.