hobbsyoyo
Deity
- Joined
- Jul 13, 2012
- Messages
- 26,575
I have heard the phrase in the thread title so many times about Chief Justice John Roberts that it's sort of the standard refrain for every major case going before the court. The theory is that John Roberts cares a whole lot about the integrity of the Supreme Court to the point that he would never make a ruling that threatens to de-legitimize the court as a political institution in a time when we really need 'honest referees calling balls and strikes', to steal an oft-used phrase from the Chief Justice. We know all this because John Roberts says this about himself frequently and has built his image on the bench based on this premise.
There's so much wrong with this that it's going to take a bit to unpack.
First, the premise that the court is truly a neutral, non-political entity was never really true I think and this is only become less true since McConnell stole a seat on false pretenses while also declaring he'd do it again in a way that completely undermines those pretenses because of the political advantage. Ever since judicial review became a theory of the way the court relates to the rest of the government way back in the founding father days, the court has been a political institution. This is not the same as saying it's a representative or even truly democratic institution in that the people on the court are not voted on directly by the people. Instead they are picked in a process that pits two of the other branches against each other and allows politicians to pick justices based on the way that they believe the would-be justices would vote on major cases. In other words, no one is looking for 'honest referees' to sit on the bench but instead partisans who can be relied on to toe one party line or the other. It's always been thus but those trends have gotten far worse in the last two decades as every confirmation hearing has been turned into massive political brawls for power.
Next is the direct claim that Roberts wouldn't do something to undermine the institution of the court itself by handing down insanely partisan rulings. To support this claim, the landmark Obamacare decision of (IIRC 2012) is hailed as Exhibit A for how much he doesn't want the legitimacy of the court to be challenged by hyper partisan rulings. To me, this case has always been the canary in the coal mine in that it signaled that Roberts will do anything to have his cake and eat it too.
While it's true that Roberts did cast the vote which kept Obamacare alive, he did so while also striking down key provisions of the law which have allowed the Republicans to completely undermine it and later set the stage for other right-leaning federal courts in Texas and elsewhere to throw the entirety of the law out the window based solely on Republican's efforts to undermine it. He got his cake and ate it too. He didn't throw out the law but gave his side the tools to throw it out without him.
Similarly, on the recent case on including a citizenship question on the census, Roberts again tried to have his cake and eat it too. The perception with the public is that Roberts essentially shut down Trump's ability to include the controversial and racially-motivated question when this is not actually the case. What Roberts actually did was decide that Trump's nakedly racist motives and arguments were not good enough and gave him a mulligan to come up with better reasons. That Trump's team is so inept that they haven't yet figured out a better argument is not indicative of Robert's shutting down attempts to do so. Roberts got his cake and ate it too - he threw up a speed bump against Trump's efforts in a way that makes the court look neutral when in fact he is trying to give Trump the latitude to do what he wants so long as he can tone down the rhetoric.
These examples show Roberts skillfully managing public perception while ultimately tipping the scales in his team's favor. There are other examples that are far more naked power grabs -
Citizens United was originally a case on a very narrow section of campaign finance law until after all the oral arguments were over. At that point, Roberts instructed the claimants to go back and re-argue the case in context of the entirety of the law, thereby opening the door to allow Roberts and company to throw out the entirety of the law. I'm not sure if that move was unprecedented but it was a complete shock and opened the flood gates to naked corruption in our government via the mechanism of campaign finance.
The recent gerrymandering case was another naked power play in that the courts have long held that while political gerrymandering is OK, racial gerrymandering is not. Through other cases and media leaks, it became plainly obvious that racial gerrymandering is part and parcel of political gerrymandering and yet when confronted with this fact which should have invalidated these efforts, Roberts decided not to rule at all. Out of nowhere, he decided that Federal courts are powerless to stop any of this despite decades of precedence to the contrary because the logic he would have used to allow gerrymandering (that it's OK if not racially motivated) was stripped away. He couldn't legitimately call that strike as anything but a strike so instead decided not to referee the play at all so his team could eek out a win.
I submit to CFC that Chief Justice John Roberts doesn't give a poop about the institution of the court but instead that his brand management game is on fleek.
There's so much wrong with this that it's going to take a bit to unpack.
First, the premise that the court is truly a neutral, non-political entity was never really true I think and this is only become less true since McConnell stole a seat on false pretenses while also declaring he'd do it again in a way that completely undermines those pretenses because of the political advantage. Ever since judicial review became a theory of the way the court relates to the rest of the government way back in the founding father days, the court has been a political institution. This is not the same as saying it's a representative or even truly democratic institution in that the people on the court are not voted on directly by the people. Instead they are picked in a process that pits two of the other branches against each other and allows politicians to pick justices based on the way that they believe the would-be justices would vote on major cases. In other words, no one is looking for 'honest referees' to sit on the bench but instead partisans who can be relied on to toe one party line or the other. It's always been thus but those trends have gotten far worse in the last two decades as every confirmation hearing has been turned into massive political brawls for power.
Next is the direct claim that Roberts wouldn't do something to undermine the institution of the court itself by handing down insanely partisan rulings. To support this claim, the landmark Obamacare decision of (IIRC 2012) is hailed as Exhibit A for how much he doesn't want the legitimacy of the court to be challenged by hyper partisan rulings. To me, this case has always been the canary in the coal mine in that it signaled that Roberts will do anything to have his cake and eat it too.
While it's true that Roberts did cast the vote which kept Obamacare alive, he did so while also striking down key provisions of the law which have allowed the Republicans to completely undermine it and later set the stage for other right-leaning federal courts in Texas and elsewhere to throw the entirety of the law out the window based solely on Republican's efforts to undermine it. He got his cake and ate it too. He didn't throw out the law but gave his side the tools to throw it out without him.
Similarly, on the recent case on including a citizenship question on the census, Roberts again tried to have his cake and eat it too. The perception with the public is that Roberts essentially shut down Trump's ability to include the controversial and racially-motivated question when this is not actually the case. What Roberts actually did was decide that Trump's nakedly racist motives and arguments were not good enough and gave him a mulligan to come up with better reasons. That Trump's team is so inept that they haven't yet figured out a better argument is not indicative of Robert's shutting down attempts to do so. Roberts got his cake and ate it too - he threw up a speed bump against Trump's efforts in a way that makes the court look neutral when in fact he is trying to give Trump the latitude to do what he wants so long as he can tone down the rhetoric.
These examples show Roberts skillfully managing public perception while ultimately tipping the scales in his team's favor. There are other examples that are far more naked power grabs -
Citizens United was originally a case on a very narrow section of campaign finance law until after all the oral arguments were over. At that point, Roberts instructed the claimants to go back and re-argue the case in context of the entirety of the law, thereby opening the door to allow Roberts and company to throw out the entirety of the law. I'm not sure if that move was unprecedented but it was a complete shock and opened the flood gates to naked corruption in our government via the mechanism of campaign finance.
The recent gerrymandering case was another naked power play in that the courts have long held that while political gerrymandering is OK, racial gerrymandering is not. Through other cases and media leaks, it became plainly obvious that racial gerrymandering is part and parcel of political gerrymandering and yet when confronted with this fact which should have invalidated these efforts, Roberts decided not to rule at all. Out of nowhere, he decided that Federal courts are powerless to stop any of this despite decades of precedence to the contrary because the logic he would have used to allow gerrymandering (that it's OK if not racially motivated) was stripped away. He couldn't legitimately call that strike as anything but a strike so instead decided not to referee the play at all so his team could eek out a win.
I submit to CFC that Chief Justice John Roberts doesn't give a poop about the institution of the court but instead that his brand management game is on fleek.
