Chief Justice John Roberts Does It Again!
I have previously written that Roberts’ approach flows from the strain of conservative jurisprudence that has been harping about “legislating from the bench” for decades. This mantra comes from conservatives shell-shocked by the judicial activism of the 1970s, including Roe v. Wade.
When you hear Republican politicians warn about “legislating from the bench,” they are using rhetoric from two decades ago when courts advanced a leftist agenda in the absence of legislative activity. The term today is as archaic as parachute pants and AMC Gremlins. These days, legislatures are passing leftist legislation that exercises unconstitutional power. In that circumstance, it is up to the courts to defend the Constitution. Today, the Court flinched from that obligation, in part because of decades of conservatives repeating the empty and now obsolete admonition against “legislating from the bench.”
Justices like Scalia, Thomas and Alito are more interested in protecting liberty than protecting the Court. They are more interested in upholding the Constitution than they are insulating the Court from leftist criticism.
When I hear Republican politicians crow about “legislating from the bench,” I cringe. That’s a battle from two decades ago. These days, the Constitution needs to be defended, even if it takes the flexing of judicial muscle.
Let’s hope Mitt Romney promises to appoint judges who defend Constitutional liberty, not judges fighting fights from decades ago.
A little off topic, but I wanted to say that I have admired your abilities as a lawyer and your personal integrity ever since you left the DOJ over the scandal of the New Black Panthers and I watched your interviews on FOX News.
I never begin reading one of your comments without expecting to learn something new and important, and I am never disappointed.
Seconded.
I agree wholeheartedly! This country could use many many more like Glenn Beck.
read his book, you will not be disappointed.
I normally am not a non-fiction reader, I read (a lot) to “escape” the day to day stuff.
I read Injustice in 3 hours.
well done Mr Adams.
“Instead, Roberts used a slight of hand in MUD that he did last week – he rewrote the parties’ arguments.”
That’s what I thought, too, but John Hinderaker at Power Line thinks a) that the government always represented the penalty as a tax and b) that Roberts was on solid ground accepting that argument (based on the Court’s historic deference since the 1930s to Congress’ authority under the spending clause), even if the government had largely downplayed it by the time the case reached SCOTUS. See: http://goo.gl/j1nD9 It’s very interesting.
I still think the ACA is unconstitutional on several grounds and that the Court erred in upholding it, but now I’m less likely to think Roberts was just rewriting the bill to get a desired end.
If one believes that Roberts didn’t just make this stuff up out of hole cloth, one is simply not able to apply logical thought to written matter, for some reason.
The English language is very clear, perhaps the most clear language as to meaning and intent in the world, and when stupid lawyers start actually reading and applying it again, without trying to factor in every retarded Supreme Court decision in 200 years (but only those that they agree with), all this will become much simpler.
I see Bush the Stupid gave as much thought to Roberts as he did to Harriet Meyers. If we want to just put in a spineless idiot, couldn’t we at least get a CONSERVATIVE spineless idiot, for once?
Since there is simply no recourse to these morons and Communists in robes, pray tell what do we bother with Congress for? It’s very expensive, and apparently must bow their heads to these unelected schmucks in every case.
We could really save some bucks by just making Ostupid King, and send everyone else home. It would also make overthrowing all of it far simpler.
“A short, sharp shock, a big black block!
To sit in solemn silence in a pestilential prison,
And awaiting the sensation
From a cheap and chippy chopper on a big black block!”…G&S, The Mikado
Well, I can dream, can’t I?
‘When I use a word,’ Jumpty Rumpty said, in rather a scornful tone, ‘it means just what I choose it to mean -neither more nor less.’
‘The question is,’ said John J., ‘whether you can make words mean so many different things.’
‘The question is,’ said Jumpty Rumpty, ‘which is to be master—that’s all.’
John Roberts should be called Jumpty Rumpty.
LOL! That seriously made me laugh so hard. *sigh* ha-ha
There you have it, the truth how Robert’s accomplished his immoral (possibly illegal, but that is for great legal minds to decipher)flip flop. To wit, it was not the typically classic flop, but one of mental gymnastics to fit the outcome/paradigm of a scenario which he wanted to accomplish -the law be damned. The reasons why he did this dastardly deed hardly matter. What matters IS the outcome, a TOTAL transformation of the US, as promised by Obama. No wonder he is smiling like a cheshire cat, as are all his anti-freedom loving surrogates.
In order words, he bastardized the meaning of the law, all in order to make it appear that IS isn’t what it really IS, but only what he deems it to be.
Not only is that immoral, but it renders him-without a doubt-unfit to sit on any court, let alone the Supreme Court!
Yes he isnt fit for the court. He clearly unilaterally legislated on his own to achieve the result that he wanted. The traitor changed his opinion in May. Hope he stays in Malta.
Time to return to the habits and methods of the First Supreme Court.
The history of Court did not start with Marbury.
Why should the Supreme Court display political courage when the voters and Congress haven’t? The reason some of these battles are so old is that for decades the Representatives and Senators we elected have not corrected some really bad legislation out of fear of the media and low interest voters. This is especially true in all matters dealing with race.
Exactly what I’ve been saying.
Republicans have acquiesced to a confirmation process that selects for weasels. And now we’re surprised that our Chief Justice is one?
Sotomayor, Kagan, Ginsburg, and Breyer were all confirmed as know leftists. Since Bork, the Republicans have gone for judges that seem to be Constitutionalists but have no real paper trail, so the likes of Souter and Roberts are confirmed.
In 2013, the Republicans must finally bring a gun the confirmation process gun fight.
John Roberts, you have had your 15min.time up !!!!!
“Judge” Robtards is an evil, insane, lefty/statist, LIAR: It’s clearly a case of forced sales, (commerce clause) not a tax: since the public is forced to buy private for-profit insurance, or else go to jail as a penalty, and as the revenue does NOT go to the government, NO, it’s not a ‘tax!’
But then, we should have noticed his leftarded tendencies, back when he was being vetted for appointment to his current job: it came out that he had declared in writing, his opinion that “There are no real individual citizen’s human rights, beyone those assigned to them by the state. Whee!”
Good post but I’ll disagree that Scalia is “interested in liberty”. Scalia is clearly bored with being a Supreme Court Justice and his intemperate behavior has brought disgrace upon the Court. He no longer even pretends to be neutral and constitutional and devolved into a purely political player. Roberts, in his decision, was at least pretending that the Court is above politics. Hope he enjoys his holiday in Malta.
Robers is not fit to tie the shoes of Scalia. Enough said.
Has Robert’s always rewritten the laws or is this new vocation a result of Obama’s disgusting tirade at the SOTU address?
Not that it really matters though, Robert’s needs to think resignation.
Scalia is the lion of the court. I would charcterize Thomas as the Killer Whale, silent but deadly. I almost put Great White Shark but that won’t do.
Roberts OTOH has to unearn his characterization from me now; Private Upham. He loves rubbing shoulders with real soldiers but when it comes time to bring the ammunition to the battle he plays patty cake with the other side.
Well said, sir.
Obama voted against Roberts but has never disguised his deep distain for both Antonin Scalia and Clarence Thomas. Scalia’s profound intellect is a quantum leap above that of BO, and our PC Divider-in-Chief sneers at Thomas for straying off the Liberal Racial Plantation.
My dream is that both Justices Scalia & Thomas are on the Court long after BO has been deposited in the political ash heap.
One of the many things I find sad about the Roberts decision is the enormous amount of work, skill and intellectual effort put into the briefs on both sides of this case.
It is unutterably depressing to think that everything those smart and talented people did was for naught. Most on the Court didn’t really care about the Constitution or precedents. Anything would have worked [or not worked] since the majority was determined to rule in favor of ACA no matter what.
If only they had known. The winning brief could have dispensed with authority and offered only a single line on a single page:
“Rule in favor of ACA or the NYT and the President will be angry and you won’t be invited to the best cocktail parties.”
My goodness, Roberts has made us even more of a Banana Republic.
In the future, don’t waste time researching precedents or the Constitution. See if you can find some good dirt on any of the Justices. They actually pay attention to that.
So what if the term “legislating from the bench” is from two decades ago. If it is still occurring today using the same terminology that was used then should be no hindrance to making your point about the behavior of the court. I have to ask myself, why would you even suggest that using the same term is inappropriate. Legislating from the bench, is legislating from the bench. The time period does not change what it is. What’s your problem?
It is a silly term. No judge is passing legislation from the bench. They aren’t holding committee hearings. Worst of all, it is a term directed at elites. What does it even mean? Nothing, hollow. I understand the point you think it makes. Here are some alternatives that regular people might understand:
Making up phony law.
Using bogus rules
Inventing new laws
My biggest problem is that the use of the term is representatitve of an overcautious approach toward the exercise of judicial power – and we saw it with Obamacare.
I think that legislating from the bench is still very appropriate in certain situations. Not necessarily this one, but certainly when judges declare gay marriage against the will of the voters. If that’s not legislating from the bench, I don’t know what is.
I had not given it much thought before, but I agree that the expression ‘legislating from the bench’ is inadequate to describe what is taking place.
Legislation is a legitimate process. What some courts are doing is closer to ‘tyranny from the bench’ though I am not sure most people would understand the classical definition of tyranny as something not done within the framework of law. Instead, the expression is likely to be viewed as raw hyperbole. But I cannot think of an alternative as suitable.
I suppose it might also be considered as ‘equity to excess’, but most people are unlikely to understand what that means. Blackstone warned in his first volume that when all law is equity there is no law, and that is what I mean by ‘equity to excess’ though it is easily misunderstood as being a good thing rather than the systemic disaster it is.
Maybe ‘politics from the bench’. We have all learned to despise politicians to some degree or another.
I hope someone comes up with an accurate and easily grasped expression for what the courts are doing. If they are going to act like rogue politicians they need to be treated like rogue politicians. After being roughed up by a few investigations and impeachments–even if unsuccessful–the judges might be grateful for the opportunity to return to being just judges and justices again.
To me it also appears as a problem of what is NOT taught in law schools, namely that Constitutional cases need to be treated in a somewhat different way from Common Law cases, where precedence (“stare decisis”) is a major determinant of direction and scope of a law’s evolution. A Constitution, however, is final. It must be an absolute measure (until amended by the appropriate process), else there be no measure at all. Thus it is particularly disturbing to encounter a justice, CJ at that, who starts rewriting laws to avoid tough issues, or to have an easier throw at adjudicating them.
Regarding the ACA case, my take was/is as follows. It was actually easy, but Roberts made it difficult in order to look good, and thereby got himself entangled in his own false logic. Like so:
(Aside: Honest people don’t need a “pretzel-machine” of “stare decisis’” convolutional capabilities. “Thus the smell”.)
The first (and generally only) meaning of a law is held to be the meaning of its plain written language. If that contradicts a “higher law”, then out it goes. Commerce clause contention unsustainable; Necessary clause contention unsustainable; oral arguments (presumably also written briefs) say tax, but the law (which is the proper subject of reference) says “penalty”, for failing to do something “mandated”. That’s it. We’re done. There cannot be a legitimate penalty to enforce an illegitimate mandate, not while subject to any rational higher law.
The tax aspect came from its method of calculation, means of levy, and process of enforcement. So it might be legitimate to view it as a tax, but the law clearly intended it to be a penalty for failing to do the gov.’s bidding. End of case, if you’re a “strict constructionist”. If you’re not, you get out the stare decisis pretzel machine and give the lever two or three twists. Voilà! Congress’ enumerated powers just vanished. Congress can now do anything it wants just so long as it calls it a tax and makes it look like a tax. Then it can lie to the people and write “penalty” for “tax” and the bloody thing is OK. A done deal! — “We LOVE YOUR MONEY!”
That became the unforeseen consequence of the unnecessary pretzel machine method!
My money’s on the peasants when they call to impeach for gross dereliction of duty and misfeasance in office. They too will need a pretzel machine. But, they just were provided one!
Go peasants!
Have a happy 4th! Enjoy the fireworks! — Remember Nov. 6th!
If you want to see a group of Republican legislators scatter just holler, hey look theirs a democrat!
Thank you, Mr. Adams. I hadn’t been aware of this. It’s more evidence of what I have been saying for years.
Roberts is a leftist mole.
Although, to be precise, I suppose he’s not a mole anymore, since he’s blown his cover.
Expect more leftist decisions from him.
GW got suckered by the same guy that suckered Ronald Reagan.
I’m not the least interested in what that weathervane promises to do.
I’m only interested in what he does.
So far, that consists of:
Forgive me if I’m not impressed with his promises.