Tag: Chief Justice John Roberts

The Horses Are Coming

Posted on by Michael Liss

by Michael Liss

[T]he most important political office is that of the private citizen. —Justice Louis Brandeis

Four Horsemen of the Apocalypse, by Viktor Vasnetsov, 1887.

We are losing that essential bit of democracy. Bit by bit, not all at once, not linearly, but the decline is there. Fading is Alexis de Tocqueville’s young country of joiners of civic associations, maintaining their differences, but working together for a common good. The new reality is a more atomized society that may share more grievances, but fewer communitarian urges. 

We would be foolish and lazy to ascribe this all to Trump. Yes, he is a talented accelerant, but the fuel was there well before 2016. The reality is that the importance of the ordinary private citizen has been shrinking. Those charged with protecting the freedoms that are essential to a productive civil life have often been either dismissive or actively hostile to them. Couple this malign neglect with the rise of a new Gilded Age cohort that can buy anything—influence, access, and platforms to amplify its views, and the public squares have suddenly become a lot less appealing.  

How did this all come about? Let’s start with the lawyers (no Shakespeare joke please). The lawyers have let us down, and more than once.

They rode in on their horses, came for our votes and took them. Shelby County v. Holder (2013) and Rucho v. Common Cause (2019).

Let us not mince words: Shelby and Rucho are, with their progeny, among the most corrosive, most destructive Supreme Court decisions handed down in the past century. They diminish what should be fundamental rights of American citizens—the right to vote to select the candidates of their choice without molestation or excessive obstruction, the right to have their votes counted, and the right to be fairly represented in the corridors of power.

The Shelby line of cases puts to death critical sections of the Voting Rights Act, plowing the field for all types of discriminatory behavior. Read more »

Monday, January 1, 2024

A World Unsettled: The Supreme Court And The Risks Of Activism

Posted on by Michael Liss

by Michael Liss

January 1, 2024. Happy New Year! Just eleven months and five shopping days before Election 2024. Whether you find it comforting that 2024 also happens to contain an extra day might be the best marker of how Political Seasonal Affective Disorder has impacted you. Personally, I haven’t been sleeping particularly well.

The New Year is often about taking stock, and if I’m counting correctly, this is my 101st essay for 3 Quarks Daily. The majority have been about American history, American politics, and what is ostensibly American law but looks a lot like politics.

Last August, as the 49th anniversary of Richard Nixon’s resignation drew near, I started a series about the chaos of the late 1960s/early 1970s and how Presidents can lose their hold on the White House. That led me back to two men, one famous, the second memorable, who, to this day, in different ways, have had an impact on the way I think.

I will come to Henry Kissinger shortly, but I first want to spend a little time celebrating Walter Kaufmann. This is not the prolific philosopher Walter A. Kaufmann who was a pre-World-War-II expat from Germany, got his PhD at Harvard, and spent most of his career at Princeton. My Walter Kaufmann is Walter H. Kaufmann, who was also a German expat, got his PhD at the New School for Social Research, and, in 1953, published Monarchism in the Weimar Republic. My Dr. Kaufmann liked a cigar, a good story, and a better glass of wine. He also taught at my high school—German to those less linguistically challenged than I was, AP European History to voluble (in English) types like me. Dr. Kaufmann had a certain cool about him, in no small part for having gone to grade school with Werner Klemperer, son of the conductor Otto Klemperer, and, to Dr. K’s enduring dismay, the future Colonel Klink.

Like all good little suburban students, we took AP classes to take AP exams to score high enough to get college credits. Dr. K was a realist, but wanted to teach this subject on his terms. The word went out that no one got higher than a 93, his logic being that no one could know anywhere near 100% of the subject matter. So, if you were in the running for Valedictorian or Salutatorian and/or cared very much about your final class rank, to learn at the feet of Dr. K came with some obvious risks. Read more »

Monday, July 17, 2023

Your Rights: Roberts’ Rules Of Order

Posted on by Michael Liss

by Michael Liss

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. …[W]e do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country. —Chief Justice John Roberts, Opinion of the Court, Biden v. Nebraska

Let us not be misled.

Here we go again.  Another year, another round of controversial Supreme Court rulings, another set of difficult questions about the behavior of Supreme Court Justices.

This is not a happy group, and the unhappiness is not merely ideological. The personalities are different. In each of the four instances of changing seats since 2016, the Court lost a bit of its temperamental cohesiveness. Beyond the famous friendship between Justices Scalia and Ginsburg, Justice Kennedy was conciliatory and mindful of the Court’s traditions; Justice Breyer was courtly and insisted he was among friends. Now we have Justice Kagan squaring off against the Chief; Justices Thomas and Jackson engaging in what looks to be a very personal argument; and Justice Alito veering from searching for the Dobbs leaker, to accusing his critics of endangering his life, to airing his grievances from the safe space of the WSJ Opinion pages. Let me admit to being surprised that Justice Kavanaugh not only vouches for collegiality, but is also the Justice most in the majority.

That the liberal wing of the Court is discontented is understandable—with a couple of exceptions, it’s getting crushed on the field. Linda Greenhouse, in an article for The New York Times, points out that long-held conservative wishes that had been dammed up behind the pre-Trump-largely-centrist Court have been realized. Abortion, guns, affirmative action, the open embrace of religion, and a heavy SCOTUS hand on those regulatory actions of which conservatives don’t approve—all these trophy wins have been banked, with more to come. Greenhouse ends on what anyone who believes in checks and balances should find chilling: “The Supreme Court now is this country’s ultimate political prize.” Read more »

Monday, October 10, 2022

Second Monday In October: The Legitimacy Crisis

Posted on by Michael Liss

by Michael Liss

Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court. —Chief Justice John Roberts

Justices of the Supreme Court, October 3, 1931. From The New York Public Library.

Ah, if only it were that simple. It’s not, so fasten your seatbelt because the men and women in black are back.  

First, the good news. The Court welcomed its newest member in Justice Ketanji Brown Jackson, and the rookie can play. She acquitted herself quite well in her first oral argument in Merrill v. Milligan. Justice Jackson joins Justices Kagan and Sotomayor in the “Lost Battalion” of Liberals, but there is every reason to think she can make her mark.

Now to the bad: Regrettably, it must be noted that SCOTUS is back in session, and no good can come from this. Having wreaked havoc across a broad spectrum last term, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are expected to continue to gorge themselves. To paraphrase Sir Edward Grey on the eve of World War I, “The lamps are going out on our rights. We shall not see them again.” Read more »

Monday, February 28, 2022

Your Rights In The Rearview Mirror

Posted on by Michael Liss

by Michael Liss

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. –Alexander Hamilton, Federalist 78

It’s my oldest memory. I am three, standing harnessed between my parents, in a brand-new two-seater 1959 Jaguar convertible roadster. We are on an empty gravel road someplace in Virginia and my Dad decides to let his new baby fly. I can see In front of me the windshield and, below, a gray leather dashboard that has two things of great interest…a speedometer and a tachometer. The motor hmmmmmms as he takes the car through the forward gears, the tachometer first rising and then falling, the speed increasing. The big whitewall tires are crunching the rough road; cinders are flying; we hit 60 MPH, then 70, then 80; and I’m clapping my hands and piping out “Faster, Daddy! Faster!” My mom goes from worried to furious “Slow down, Ernie, slow down!” As he passes 90, I look down for a moment and she’s slapping her yellow shorts. I peek at the rearview mirror and see a huge cloud of dust. 95, 100, and finally 105. Then without warning, and without using the brakes, he starts to slow, gradually downshifting; the speedometer and tachometer fall; and that’s where my memory ends.

I have been thinking about writing a Supreme Court piece since the conservative bloc’s muscle-flexing on Texas’s SB-8 abortion law, and, each time I do, the memory of that beautiful sportscar flying down the road keeps gnawing at me. The thrill of it, the uncertainty, the obvious danger. My Dad’s going through whatever decision-making process he did to start, continue, and end.

We’ve got a new Sheriff in town, a new driver for that beautiful car. Justices Thomas, Alito, Kavanaugh, Gorsuch and Barrett are taking the wheel and the throttle. Just where is their ultra-conservative vision taking us, and at what cost? Read more »

Monday, July 2, 2012

America’s Move to the Right

Posted on by Akim Reinhardt

by Akim Reinhardt

John RobertsLast week, U.S. Supreme Court Chief Justice John Roberts stunned much of America. Normally associated with the court’s Conservative bloc, he jumped ship and cast the deciding vote in the 5-4 case of Florida v. Department of Health. His support allow the court to uphold the constitutionality of the individual mandate portion of the Patient Protection and Affordable Care Act (ACA). Popularly known as ObabaCare, the bill requires all but the poorest Americans to purchase health insurance or pay a hefty penalty.

All of Roberts’ usual compatriots, along with the court’s typical swing voter, Justice Anthony Kennedy, vigorously dissented. Not only did they claim that the mandate is unconstitutional, they wished to scrap the entire bill. Had Roberts voted with them, as most observers expected him to, ObamaCare would have gone down in flames. But he didn’t. Instead, he infuriated Conservatives and made (temporary?) friends among Liberals by allowing the bill to stand. And in order to do so, he split the difference.

On the one hand, Roberts remained true to his philosophy of judicial restraint, stating in his decision: “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Furthermore, he steadfastly refused to join the Liberal wing in signing off on the bill’s constitutionality under the commerce clause; Congress, he maintained, most certainly cannot compel Americans to purchase health insurance. In these respects, at least, wore Conservative garb. However, Roberts did allow that in this case, the government's fine on individuals who buck the mandate, could be interpreted as a tax. That was a particularly liberal reading of the bill, pun intended, given that for political reasons the ACA’s architects had been careful to not to call the penalty a tax. But with that reading, Roberts found a way to join the four Liberal justices in upholding the ACA since Congress’ powers of taxation are well established. Thus did Roberts craft an opinion that eased his Conservative conscience while also allowing a Liberal piece of legislation to stand.

Or did he?

Read more »