The Supreme Court is much less popular and much more divisive today than it was when John Roberts was sworn in as the 17th Chief Justice on September 29, 2005. And at least much of that is his fault.
I hope the Roberts Could will someday be known as the modern Lochner court-- many of its horrible decisions overturned and broadly recognized as lawless and disgraceful.
Did you notice the speech by Justice Thomas this weekend to the effect that the Supreme Court can and should ignore precedent it doesn't like? Not a good sign.
Seems to me this is an example of a pretty anodyne comment that takes larger significance because it's Justice Thomas who says it.
It's a pretty common belief that bad precedents should be cabined and sometimes overruled. How far you take that is somewhat more controversial.
The issue is that Justice Thomas has a broad understanding of what a "bad precedent" is, and couples that with a deeply un-conservative willingness to reach those issues when not before the Court and when not required to resolve a particular dispute.
Compare the Thomas concurrence in Dobbs ("we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell") with Kavanaugh's concurrence ("[t]he history of stare decisis in this Court establishes that a constitutional precedent may be overruled only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests").
It's also significant in light of its timing and the Court's willingness to ignore things that might stand in the way of doing what it wants, e.g., Humphrey's Executor and the impoundment cases (and the law and the underlying Constitutional provisions).
The dismissive comment about something somebody dreamed up and others went along with is an open invitation for any court to reinvent everything on its own whim.
Not a good sign, but also not an unexpected one, especially given Dobbs. (Or much of Justice Thomas's jurisprudence over the past 34 years. Or his "gifts" from billionaire "friends.")
Seems to be a wink-and-a-nod that the Court is going to overrule Humphrey’s Executor. His 'analogy' with "an orangutan driving the train" was pretty appalling, even for him.
In my opinion, Thomas' analogy implies a rampant level of incompetence on the part of prior Supreme Court justices as a reason to undermine 'stare decisis', which is dreadful. Apparently, he doesn't recognize the same assertion can be leveled against him. Guess I expect (a lot) more from a Supreme Court justice.
I’m increasingly coming to the conclusion that President Newsom must pack the court if we are to have any chance of our democracy surviving.
Still doesn’t address the reality that we probably won’t have fair or free elections and SCOTUS will pick up right where they left off in Bush v. Gore and officially end elections.
The Court represents big money and the billionaire donors that put them in positions of power. If anything they are afraid of "the people" and don't really care what "the people" think. For the Court the concept of "of the people, by the people and for the people" is a passe concept not that different from stare decisis. We exist in a full blown plutocracy where the golden rule is in effect: them with the gold makes the rules. The Court is just responding to the wishes of big money. After all Harlan Crow is Justice Thomas' best friend and confidant.
The plutocracy will eventually pass but then the question will become what takes its place and will it still be a democracy. Greek political theory would suggest a democracy follows oligarchy (plutocracy is a form of oligarchy) but given the world today the answer does not seem very certain.
This commentary is excellent and much needed as a tool for critical thinking about our SC. I cannot understand how our justices can justify their failure to explain the decisions they make on the shadow docket. Every litigant, rich or poor, popular or otherwise, deserves to know why his/ her/ their claim failed. And the lower court judges who work so hard to decide cases also deserve an explanation from the SC. Transparency does not exist in a court which issues orders without the sunlight of explanation.
I’m not certain of the right word—hypocrisy isn’t quite strong enough—but I cannot avoid the observation that the Court that propounds “originalism” as its guiding principle, to the point of adopting the vestments of professional historians, is the same Court that is now discarding precedent as a key factor in its decisions. After all, originalism is the ultimate precedent, reaching back to English lanaguage usage in the Middle Ages at points to explain to us what the people who voted to adopt the Constitution understood what they were approving. (All BS)
But, I have a less legal “explanation” of Roberts. He struck me as always having a RW agenda, but would achieve it by other rulings, especially on voting, so the Court remained legit, but the voters were set up to achieve his ends.
Then, 2 events occurred: the Leo-Trio came to the Court marginalizing Roberts unless he joined the Trio (and Thomas and Alito) who would now control the Court. (Steve, has that happened before?)
And secondly, their corruption was exposed. I never recall considering personal financial corruption as applying to the Court. Fortas was a very minor event w poor optics. This stuff is huge.
I have been 100% accurate predicting Court decisions by ignoring the law, and just analyzing it from the perspective of their need to retain a political buffer from investigations, indictments, and even a strong forward looking ethics law (that Barr said would cause an exodus of the RW justices!).
And, it really comes down to race: Roberts and Alito cut their teeth in the Reagan DoJ where the prospect of minorities voting in large numbers, esp in the South, would undermine the Senate majority the passage of the VRA gave them, as LBJ predicted.
Three other points: w their shadow docket, I have a diff read on the “SCOTUS” moniker: Star Chamber of the United States.
Abandoning precedent surrenders a key element of legitimacy of a countermajoritarian branch in a majoritarian designed govt structure. See eg “The Least Dangerous Branch”, Alex Bickel whom I think was the first to address that anomaly directly.
To add perhaps an obvious point to corruption, the billionaire donors can easily leave hints abt next vacation period being better or worse depending on how a Justice votes.
Is it that the Chief Justice doesn’t accept that the Court is losing credibility on a daily basis; that he thinks the Court doesn’t need that credibility in order to fulfill its intended role in our constitutional system; or that he doesn’t care?
Your statement reminds me of another you made in a podcast interview in Texas a few years ago where in you surmised that some justices become crankier (Scalia, for example) & more likely to express caustic opinions as their tenure extends to 2 decades or so.
The refusal of this court to install an enforceable ethics code put an end to its legitimacy. Two of the justices would have been out in an earlier era, but continue to serve notwithstanding their obvious lack of judicial ethics. If the Democrats somehow get back into power they must abolish the filibuster, add five new members to the court, create a “good behavior” standard to supplement impeachment and show the miscreants the door. The new court should exercise its sua sponte powers and summarily reverse the most ridiculous decisions of the Roberts court. Let Thomas complain if he has the nerve to.
My question is this: Have lawyers made the “law” impossible to understand for the lay person purposefully, or did it just happen by chance.? I am an old lady and will admit that my comprehension has slipped a bit but most of this is gibberish if one does not use a score card!
I know Prof. Vladeck is explicitly trying to make the Court and its issues more accessible in this column, but, well, law is complicated. Always has been. More accessible doesn't mean always accessible, plus it always depends on the specific legal questions being addressed.
Still, the main point here is merely that Chief Justice Roberts's rightward turn is both clearly happening as well as contradictory to his jurisprudence during his first 15 years on the bench. It's not clear if anyone aside from Roberts himself understands the reasons for it. He's pivoted from being an institutionalist – heavily prioritizing the Court's own stalwart standing – to actively allowing Trump to do much of what he wants, despite Congress having the power of the purse (under the Constitution) and him actively defying plainly *established* law.
Trump seems to think he can unilaterally "overrule" any given law. The horrifying part is that the Supreme Court is letting him do so, far more often than not.
Jeff I appreciate your comment so much but sometimes wonder if things really need to be so complicated. About the reasons for Roberts wild swing to accommodate Trump, my mind leads me to money and fear. Roberts and his wife continue to make lots of money by maintaining the status quo. And all the money and power he has easily leads me to believe he is named in the Epstein files.
There's zero known evidence suggesting Roberts has anything whatsoever to do with the Epstein files, plus the files are themselves a conspiracy theory. He's amassed power solely by virtue of serving as chief justice – arguably a more influential position than president, particularly if you spend over two decades in the role – and there's also no evidence that he's reaped any pricey "gifts" from billionaire "friends," as with Clarence Thomas. I know Epstein is a nicely tied-up answer, but I'm afraid it's likely not the correct one.
Federal judges may not be "rich" by modern standards, but Roberts is one of the highest-paid employees of the federal government – he currently makes around $320K/year – and has been a federal judge for 22 years, along with a decade as a BigLaw partner before then. I doubt money is an issue of any sort, for either Roberts or his wife.
And while Roberts's rightward pivot is obviously concerning, one of its core problems is that NO ONE – including Prof. Vladeck – has any real idea why he did so (and continues to do so). While it's at least possible he's being blackmailed or something – I put absolutely nothing past Stephen Miller, plus he could theoretically be blackmailed for any number of things – it's unlikely.
Please remember that both of our positions are simply positions. Also addictions to both power and money are rampant in our country. Addictions tell us that we never have enough of anything. The Epstein files to you may be a conspiracy theory but there is much evidence (especially from the women who experienced this abuse) of its reality. I agree with your feelings regarding Steven Miller but blackmail is difficult without evidence. Robert’s salary is not the money I am talking about. As I began, we both have the right to believe and to share our own OPINIONS on these matters.❤️
Thank you proving a perspective and shedding light on the role of Chief Justice Roberts. From my citizen’s, non-lawyer perspective – or bias – he seems to me to be even more reprehensible in his pursuit of the upending of the Constitution and support of injustice than the more obvious single-minded advocates of the perverted doctrines of originalism and the unitary executive, notably Justices Alito and Thomas. I am not a mind reader but I do pose the question of whether Roberts is a tortured individual struggling honestly to reconcile conflicting impulses – like Saint Augustine, "Lord, make me chaste, but not yet!" – or is a person trying disingenuously to convince us that he is a genuinely “good guy” looking nobly and honorably for solutions that will keep the country and Constitution intact in the face of fundamental divisions on the Court and within the nation of what that requires. Two of the most appalling decisions – again from my own perspective – during his tenure are Heller in 2008 and Citizens United in 2010 (both 5-4 rulings with which he concurred, well before the Trump era. ). The Citizens United decision wa written by Justice Anthony Kennedy. Roberts concurred in that 5-4 ruling along with the then usual conservative (whatever that word means any more) suspects of Alito, Thomas, and Scalia, holding that corporate and union spending on independent political broadcasts are a form of protected free speech and cannot be limited. Citizens United has given free rein to the increasing reign of corruption that is permeating throughout US society, a consequence that should have been obvious at the time let alone today to anyone who knows anything about human nature, the exercise of power, and the influence of money. Heller was another 5-4 ruling that affirmed an individual right to possess firearms for self-defense, overturning a total handgun ban in Washington D.C., presumably ignoring the introductory (but now anti-originalist words) of the Second Amendment, “"A well regulated Militia, being necessary to the security of a free State,….” Are individuals acquiring very lethal weaponry required to prove that they are members in good standing of a “well regulated militia,” and, if so, do the Oath Keepers and Proud Boys qualify? Again, are Justices oblivious to the consequences of their decisions in the United States of the 21st century, which is no longer a frontier state, while weaponry today has no relationship in its lethality to the muskets and pistols that the Founders of our country were familiar with and used to defeat the British Empire. One might as well argue that since horses and carts are modes of transport and so are Airbus and Boeing jet planes, the latter should not be regulated differently from the former. Do not these examples prove that Roberts’ dark side (my bias again) has always been there, and is now being supercharged and able to manifest itself in full force and unrestrained in the Trump era?
It is too bad the lawyers for the plaintiffs don ’t make your argument in front of the Supremes. I’d like to see their hair on fire! Non-lawyer here too.
Steve, leaving aside the Mets’ collapse, I’ve always been puzzled by the partisan gerrymandering decision. Is there anything that would prevent a state from gathering all members of a party in a single congressional district, while dividing the rest of the state into other districts? If the issue is numerical, all districts should have the same number of residents, is there anything that requires districts to be contiguous? (I don’t recall that word in the Constitution.) Thanks.
Not to quibble, Joe (hey, I’m also from the Bronx), but in July, the Mets had the best record in the majors. The results since then qualify as a collapse.
I'm no expert, but the web site below says that partisan gerrymandering is "far more legally complex" than racial gerrymandering, which is legally prohibited. It also says that states often have regulations on gerrymandering that require "contiguity" and "compactness" among other properties of voting districts. I suspect that "compactness" is not precisely defined, which would leave a lot for lawyers to argue about.
So could the next president fire the SCOTUS judges he did not like for cause? Seems as if they have given him free rein to do whatever he feels like doing. Would be poetic justice
SCOTUS has justices, not judges. Both justices & federal judges can only be removed via the same impeachment process in the Senate that presidents go through. They're otherwise impossible to fire (even for Trump): nearly all federal judgeships allow for lifetime tenure. (And you don't think Trump would've already fired the Court's entire liberal wing if he could?)
Much like there's no realistic chance of Trump being impeached & convicted, the same is true for the judicial branch: the next president can't "fire" anyone.
I *do* wonder, to Steve's question, how recent developments would apply to the President's (attempted) removal of non-Article III federal judges (like the Tax Court or the D.C. Superior Court), whose tenures are protected only by statute...
I meant to specify Article III judges in my original post – apologies. (That's what I meant by "nearly all," but I should've clarified.) I know it gets fuzzier beyond there.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Notice the "Judges, both of the supreme and inferior Courts" part. Several prominent SCOTUS justices, (Holmes, Robert H. Jackson, etc.) referred to themselves as "judge," reflecting a degree of humility. An example for all of us.
While I continue to cling to the faint hope that the chief justice has some sort of master plan here that will somehow explain his various rulings, it dims further by the day as the Roberts court keeps permitting EO after EO that flagrantly violate statutory law.
That being said, what I'm wondering now is where, specifically, Roberts is willing to draw at least one red line. (Other than the Lisa Cook case, where a ruling in Trump's favor remains unlikely. Maybe.) I know the Court likely won't hear anything in the Comey indictment case – and God help us if I'm mistaken – but it's at least possible and certainly stands as one of Trump's most brazenly warped attacks to date.
I'm assuming Chief Justice Roberts is fully aware of the damage being inflicted by the Court's rulings, and that he's knowingly risking his own legacy by enabling further lawlessness & tyranny. Particularly given the broad trend of Republican appointees from recent decades ending their terms on the Court following turns to the left on key issues (mainly Justices O'Connor, Souter & Kennedy), Roberts's own pivot in the opposite direction is more perplexing still.
At this point it's not clear whether Roberts has *any* red line, aside from Cook & Comey. And while I never expected the Court's 2025-2026 term to be even more stomach-churning (within the legal world) than post-election 2020, we may be at exactly that point. Has the line now vanished?
I hope the Roberts Could will someday be known as the modern Lochner court-- many of its horrible decisions overturned and broadly recognized as lawless and disgraceful.
Did you notice the speech by Justice Thomas this weekend to the effect that the Supreme Court can and should ignore precedent it doesn't like? Not a good sign.
EDIT: The speech was Thursday, https://abcnews.go.com/Politics/justice-clarence-thomas-legal-precedents-gospel/story?id=125967044
Seems to me this is an example of a pretty anodyne comment that takes larger significance because it's Justice Thomas who says it.
It's a pretty common belief that bad precedents should be cabined and sometimes overruled. How far you take that is somewhat more controversial.
The issue is that Justice Thomas has a broad understanding of what a "bad precedent" is, and couples that with a deeply un-conservative willingness to reach those issues when not before the Court and when not required to resolve a particular dispute.
Compare the Thomas concurrence in Dobbs ("we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell") with Kavanaugh's concurrence ("[t]he history of stare decisis in this Court establishes that a constitutional precedent may be overruled only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests").
It's also significant in light of its timing and the Court's willingness to ignore things that might stand in the way of doing what it wants, e.g., Humphrey's Executor and the impoundment cases (and the law and the underlying Constitutional provisions).
I'm not sure I'd characterize his description of previous Courts dreaming rulings up and inventing new law out of whole cloth as "anodyne."
It strikes me that his ill-considered, unsubstantiated statements hew at the very ankles of Dame Justice.
The dismissive comment about something somebody dreamed up and others went along with is an open invitation for any court to reinvent everything on its own whim.
Not a good sign, but also not an unexpected one, especially given Dobbs. (Or much of Justice Thomas's jurisprudence over the past 34 years. Or his "gifts" from billionaire "friends.")
Seems to be a wink-and-a-nod that the Court is going to overrule Humphrey’s Executor. His 'analogy' with "an orangutan driving the train" was pretty appalling, even for him.
Orangutan or orange and tan? I have used the metaphor of the drunken school bus driver on numerous occasions.
In my opinion, Thomas' analogy implies a rampant level of incompetence on the part of prior Supreme Court justices as a reason to undermine 'stare decisis', which is dreadful. Apparently, he doesn't recognize the same assertion can be leveled against him. Guess I expect (a lot) more from a Supreme Court justice.
This is the UnAmerican scotus. They DO NOT represent The People.
EXTREME not Supreme!
Absolute destruction!
I’m increasingly coming to the conclusion that President Newsom must pack the court if we are to have any chance of our democracy surviving.
Still doesn’t address the reality that we probably won’t have fair or free elections and SCOTUS will pick up right where they left off in Bush v. Gore and officially end elections.
Roberts and the other 5 believe that our country belongs to wealthy men. This nightmare is on them.
The Court represents big money and the billionaire donors that put them in positions of power. If anything they are afraid of "the people" and don't really care what "the people" think. For the Court the concept of "of the people, by the people and for the people" is a passe concept not that different from stare decisis. We exist in a full blown plutocracy where the golden rule is in effect: them with the gold makes the rules. The Court is just responding to the wishes of big money. After all Harlan Crow is Justice Thomas' best friend and confidant.
The plutocracy will eventually pass but then the question will become what takes its place and will it still be a democracy. Greek political theory would suggest a democracy follows oligarchy (plutocracy is a form of oligarchy) but given the world today the answer does not seem very certain.
History will not be kind to the Roberts Court.
This commentary is excellent and much needed as a tool for critical thinking about our SC. I cannot understand how our justices can justify their failure to explain the decisions they make on the shadow docket. Every litigant, rich or poor, popular or otherwise, deserves to know why his/ her/ their claim failed. And the lower court judges who work so hard to decide cases also deserve an explanation from the SC. Transparency does not exist in a court which issues orders without the sunlight of explanation.
I’m not certain of the right word—hypocrisy isn’t quite strong enough—but I cannot avoid the observation that the Court that propounds “originalism” as its guiding principle, to the point of adopting the vestments of professional historians, is the same Court that is now discarding precedent as a key factor in its decisions. After all, originalism is the ultimate precedent, reaching back to English lanaguage usage in the Middle Ages at points to explain to us what the people who voted to adopt the Constitution understood what they were approving. (All BS)
But, I have a less legal “explanation” of Roberts. He struck me as always having a RW agenda, but would achieve it by other rulings, especially on voting, so the Court remained legit, but the voters were set up to achieve his ends.
Then, 2 events occurred: the Leo-Trio came to the Court marginalizing Roberts unless he joined the Trio (and Thomas and Alito) who would now control the Court. (Steve, has that happened before?)
And secondly, their corruption was exposed. I never recall considering personal financial corruption as applying to the Court. Fortas was a very minor event w poor optics. This stuff is huge.
I have been 100% accurate predicting Court decisions by ignoring the law, and just analyzing it from the perspective of their need to retain a political buffer from investigations, indictments, and even a strong forward looking ethics law (that Barr said would cause an exodus of the RW justices!).
And, it really comes down to race: Roberts and Alito cut their teeth in the Reagan DoJ where the prospect of minorities voting in large numbers, esp in the South, would undermine the Senate majority the passage of the VRA gave them, as LBJ predicted.
Three other points: w their shadow docket, I have a diff read on the “SCOTUS” moniker: Star Chamber of the United States.
Abandoning precedent surrenders a key element of legitimacy of a countermajoritarian branch in a majoritarian designed govt structure. See eg “The Least Dangerous Branch”, Alex Bickel whom I think was the first to address that anomaly directly.
To add perhaps an obvious point to corruption, the billionaire donors can easily leave hints abt next vacation period being better or worse depending on how a Justice votes.
Is it that the Chief Justice doesn’t accept that the Court is losing credibility on a daily basis; that he thinks the Court doesn’t need that credibility in order to fulfill its intended role in our constitutional system; or that he doesn’t care?
Your statement reminds me of another you made in a podcast interview in Texas a few years ago where in you surmised that some justices become crankier (Scalia, for example) & more likely to express caustic opinions as their tenure extends to 2 decades or so.
The refusal of this court to install an enforceable ethics code put an end to its legitimacy. Two of the justices would have been out in an earlier era, but continue to serve notwithstanding their obvious lack of judicial ethics. If the Democrats somehow get back into power they must abolish the filibuster, add five new members to the court, create a “good behavior” standard to supplement impeachment and show the miscreants the door. The new court should exercise its sua sponte powers and summarily reverse the most ridiculous decisions of the Roberts court. Let Thomas complain if he has the nerve to.
My question is this: Have lawyers made the “law” impossible to understand for the lay person purposefully, or did it just happen by chance.? I am an old lady and will admit that my comprehension has slipped a bit but most of this is gibberish if one does not use a score card!
I know Prof. Vladeck is explicitly trying to make the Court and its issues more accessible in this column, but, well, law is complicated. Always has been. More accessible doesn't mean always accessible, plus it always depends on the specific legal questions being addressed.
Still, the main point here is merely that Chief Justice Roberts's rightward turn is both clearly happening as well as contradictory to his jurisprudence during his first 15 years on the bench. It's not clear if anyone aside from Roberts himself understands the reasons for it. He's pivoted from being an institutionalist – heavily prioritizing the Court's own stalwart standing – to actively allowing Trump to do much of what he wants, despite Congress having the power of the purse (under the Constitution) and him actively defying plainly *established* law.
Trump seems to think he can unilaterally "overrule" any given law. The horrifying part is that the Supreme Court is letting him do so, far more often than not.
Jeff I appreciate your comment so much but sometimes wonder if things really need to be so complicated. About the reasons for Roberts wild swing to accommodate Trump, my mind leads me to money and fear. Roberts and his wife continue to make lots of money by maintaining the status quo. And all the money and power he has easily leads me to believe he is named in the Epstein files.
There's zero known evidence suggesting Roberts has anything whatsoever to do with the Epstein files, plus the files are themselves a conspiracy theory. He's amassed power solely by virtue of serving as chief justice – arguably a more influential position than president, particularly if you spend over two decades in the role – and there's also no evidence that he's reaped any pricey "gifts" from billionaire "friends," as with Clarence Thomas. I know Epstein is a nicely tied-up answer, but I'm afraid it's likely not the correct one.
Federal judges may not be "rich" by modern standards, but Roberts is one of the highest-paid employees of the federal government – he currently makes around $320K/year – and has been a federal judge for 22 years, along with a decade as a BigLaw partner before then. I doubt money is an issue of any sort, for either Roberts or his wife.
And while Roberts's rightward pivot is obviously concerning, one of its core problems is that NO ONE – including Prof. Vladeck – has any real idea why he did so (and continues to do so). While it's at least possible he's being blackmailed or something – I put absolutely nothing past Stephen Miller, plus he could theoretically be blackmailed for any number of things – it's unlikely.
Please remember that both of our positions are simply positions. Also addictions to both power and money are rampant in our country. Addictions tell us that we never have enough of anything. The Epstein files to you may be a conspiracy theory but there is much evidence (especially from the women who experienced this abuse) of its reality. I agree with your feelings regarding Steven Miller but blackmail is difficult without evidence. Robert’s salary is not the money I am talking about. As I began, we both have the right to believe and to share our own OPINIONS on these matters.❤️
Steve,
Thank you proving a perspective and shedding light on the role of Chief Justice Roberts. From my citizen’s, non-lawyer perspective – or bias – he seems to me to be even more reprehensible in his pursuit of the upending of the Constitution and support of injustice than the more obvious single-minded advocates of the perverted doctrines of originalism and the unitary executive, notably Justices Alito and Thomas. I am not a mind reader but I do pose the question of whether Roberts is a tortured individual struggling honestly to reconcile conflicting impulses – like Saint Augustine, "Lord, make me chaste, but not yet!" – or is a person trying disingenuously to convince us that he is a genuinely “good guy” looking nobly and honorably for solutions that will keep the country and Constitution intact in the face of fundamental divisions on the Court and within the nation of what that requires. Two of the most appalling decisions – again from my own perspective – during his tenure are Heller in 2008 and Citizens United in 2010 (both 5-4 rulings with which he concurred, well before the Trump era. ). The Citizens United decision wa written by Justice Anthony Kennedy. Roberts concurred in that 5-4 ruling along with the then usual conservative (whatever that word means any more) suspects of Alito, Thomas, and Scalia, holding that corporate and union spending on independent political broadcasts are a form of protected free speech and cannot be limited. Citizens United has given free rein to the increasing reign of corruption that is permeating throughout US society, a consequence that should have been obvious at the time let alone today to anyone who knows anything about human nature, the exercise of power, and the influence of money. Heller was another 5-4 ruling that affirmed an individual right to possess firearms for self-defense, overturning a total handgun ban in Washington D.C., presumably ignoring the introductory (but now anti-originalist words) of the Second Amendment, “"A well regulated Militia, being necessary to the security of a free State,….” Are individuals acquiring very lethal weaponry required to prove that they are members in good standing of a “well regulated militia,” and, if so, do the Oath Keepers and Proud Boys qualify? Again, are Justices oblivious to the consequences of their decisions in the United States of the 21st century, which is no longer a frontier state, while weaponry today has no relationship in its lethality to the muskets and pistols that the Founders of our country were familiar with and used to defeat the British Empire. One might as well argue that since horses and carts are modes of transport and so are Airbus and Boeing jet planes, the latter should not be regulated differently from the former. Do not these examples prove that Roberts’ dark side (my bias again) has always been there, and is now being supercharged and able to manifest itself in full force and unrestrained in the Trump era?
My feelings exactly; from another non-lawyer.
It is too bad the lawyers for the plaintiffs don ’t make your argument in front of the Supremes. I’d like to see their hair on fire! Non-lawyer here too.
Steve, leaving aside the Mets’ collapse, I’ve always been puzzled by the partisan gerrymandering decision. Is there anything that would prevent a state from gathering all members of a party in a single congressional district, while dividing the rest of the state into other districts? If the issue is numerical, all districts should have the same number of residents, is there anything that requires districts to be contiguous? (I don’t recall that word in the Constitution.) Thanks.
Mets didn't have a collapse. They had extended bad play. A "collapse" suggests a better season than they had.
Not to quibble, Joe (hey, I’m also from the Bronx), but in July, the Mets had the best record in the majors. The results since then qualify as a collapse.
I'll accept that. House of cards best record.
... plus, Gary Cohen ended the game yesterday referencing a slow-motion collapse.
I'm no expert, but the web site below says that partisan gerrymandering is "far more legally complex" than racial gerrymandering, which is legally prohibited. It also says that states often have regulations on gerrymandering that require "contiguity" and "compactness" among other properties of voting districts. I suspect that "compactness" is not precisely defined, which would leave a lot for lawyers to argue about.
https://bipartisanpolicy.org/explainer/redistricting-and-gerrymandering-what-to-know/
I hope that there will be a special place in HELL for Roberts and the rest of the black-robed fascists.
So could the next president fire the SCOTUS judges he did not like for cause? Seems as if they have given him free rein to do whatever he feels like doing. Would be poetic justice
SCOTUS has justices, not judges. Both justices & federal judges can only be removed via the same impeachment process in the Senate that presidents go through. They're otherwise impossible to fire (even for Trump): nearly all federal judgeships allow for lifetime tenure. (And you don't think Trump would've already fired the Court's entire liberal wing if he could?)
Much like there's no realistic chance of Trump being impeached & convicted, the same is true for the judicial branch: the next president can't "fire" anyone.
I *do* wonder, to Steve's question, how recent developments would apply to the President's (attempted) removal of non-Article III federal judges (like the Tax Court or the D.C. Superior Court), whose tenures are protected only by statute...
I meant to specify Article III judges in my original post – apologies. (That's what I meant by "nearly all," but I should've clarified.) I know it gets fuzzier beyond there.
Thanks for the clarification Jeff. Admittedly I’m not as educated on these matters as I wish I was so I appreciate your response.
Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Notice the "Judges, both of the supreme and inferior Courts" part. Several prominent SCOTUS justices, (Holmes, Robert H. Jackson, etc.) referred to themselves as "judge," reflecting a degree of humility. An example for all of us.
While I continue to cling to the faint hope that the chief justice has some sort of master plan here that will somehow explain his various rulings, it dims further by the day as the Roberts court keeps permitting EO after EO that flagrantly violate statutory law.
That being said, what I'm wondering now is where, specifically, Roberts is willing to draw at least one red line. (Other than the Lisa Cook case, where a ruling in Trump's favor remains unlikely. Maybe.) I know the Court likely won't hear anything in the Comey indictment case – and God help us if I'm mistaken – but it's at least possible and certainly stands as one of Trump's most brazenly warped attacks to date.
I'm assuming Chief Justice Roberts is fully aware of the damage being inflicted by the Court's rulings, and that he's knowingly risking his own legacy by enabling further lawlessness & tyranny. Particularly given the broad trend of Republican appointees from recent decades ending their terms on the Court following turns to the left on key issues (mainly Justices O'Connor, Souter & Kennedy), Roberts's own pivot in the opposite direction is more perplexing still.
At this point it's not clear whether Roberts has *any* red line, aside from Cook & Comey. And while I never expected the Court's 2025-2026 term to be even more stomach-churning (within the legal world) than post-election 2020, we may be at exactly that point. Has the line now vanished?