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.
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.
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.
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.")
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.
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.
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.
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.
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.
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.
Roberts, the Voting Rights Act hating Reaganite, was going to have a notable reign (a debatable term) but the Trump justices truly made his Court horrible. The voting rights stuff was bad anyhow though it took Kennedy leaving for them to seal the deal with partisan gerrymandering.
(I think that opinion -- though I oppose it -- could be defended on judicial restraint grounds but you can't have that case AND Shelby v. Holder & have that hold much water.)
One low point was Roberts ranting about how the same sex marriage opinion, which (like it or not) was a logical conclusion to the gay/lesbian cases (which fit into a wider series of cases) as somehow not constitutional law. He even felt it necessary to dissent from the bench.
The author of this Substack opposes court expansion. He fears it will taint the Court. Well, the Court is tainted with a strong Trump connection. Kennedy seems to be his buddy. Thomas and his wife are MAGA & Thomas is at this point illegitimate with all his ethical problems.
Each Trump nominee had a tainted nomination for one reason or the other. Trump v. U.S. was a clear jump the shark moment. This Court is tainted. Reform without addressing personnel is not enough. And, yeah, Dobbs was a travesty. And that was just ONE of them!
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.
it has become abundantly clear that you can respect John Roberts or you can respect the Constitution; but it cannot be both. This Court majority has done NOTHING to halt the continuing violations of law and Constitution by Trump. If they ever do it will be too late to help the Republic. They must be defeated as the part of MAGA that they are.
It is remarkable how much has changed *just with CJ Roberts* in so little time. I think at the end of OT2021 this would have been an exceedingly difficult point to make - at least if you are trying to write pragmatically and not deeply ideologically like Steve does - sure he's voted questionably but had still overall been an institutionalist. Yet it's only taken 3 terms for him to basically tear up the previous 17. I am becoming ever more convinced that the reason for this is actually very boring - the political winds of change have just pushed him rightwards and that's reflecting in his votea.
I think Roberts will be known as the no. 1 worst chief justice rather than the 4th or 3rd longest serving. If he’d quit dying his hair like the sissy he is, we would know there is little chance he will make it to the second longest serving criminal of the supreme criminals.
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.
It's the third one. He doesn't care. He is a partisan actor working in concert with other partisan actors to try to cement conservative legal theory for decades to come. But that they are doing so in such a ham-fisted, nakedly illegitimate way will be their own undoing. History shows that you cannot hold back the tide of majoritarian will indefinitely.
And one cannot forget that this is all happening against the backdrop of an ethics crisis amongst the court's majority members. The court's majority is ethically, morally, and jurisprudentially corrupt for all to see.
This is the UnAmerican scotus. They DO NOT represent The People.
EXTREME not Supreme!
Absolute destruction!
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").
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.
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.
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.
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.")
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.
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.
Roberts and the other 5 believe that our country belongs to wealthy men. This nightmare is on them.
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.
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.
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?
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.
My feelings exactly; from another non-lawyer.
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.
Roberts, the Voting Rights Act hating Reaganite, was going to have a notable reign (a debatable term) but the Trump justices truly made his Court horrible. The voting rights stuff was bad anyhow though it took Kennedy leaving for them to seal the deal with partisan gerrymandering.
(I think that opinion -- though I oppose it -- could be defended on judicial restraint grounds but you can't have that case AND Shelby v. Holder & have that hold much water.)
One low point was Roberts ranting about how the same sex marriage opinion, which (like it or not) was a logical conclusion to the gay/lesbian cases (which fit into a wider series of cases) as somehow not constitutional law. He even felt it necessary to dissent from the bench.
The author of this Substack opposes court expansion. He fears it will taint the Court. Well, the Court is tainted with a strong Trump connection. Kennedy seems to be his buddy. Thomas and his wife are MAGA & Thomas is at this point illegitimate with all his ethical problems.
Each Trump nominee had a tainted nomination for one reason or the other. Trump v. U.S. was a clear jump the shark moment. This Court is tainted. Reform without addressing personnel is not enough. And, yeah, Dobbs was a travesty. And that was just ONE of them!
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.
it has become abundantly clear that you can respect John Roberts or you can respect the Constitution; but it cannot be both. This Court majority has done NOTHING to halt the continuing violations of law and Constitution by Trump. If they ever do it will be too late to help the Republic. They must be defeated as the part of MAGA that they are.
It is remarkable how much has changed *just with CJ Roberts* in so little time. I think at the end of OT2021 this would have been an exceedingly difficult point to make - at least if you are trying to write pragmatically and not deeply ideologically like Steve does - sure he's voted questionably but had still overall been an institutionalist. Yet it's only taken 3 terms for him to basically tear up the previous 17. I am becoming ever more convinced that the reason for this is actually very boring - the political winds of change have just pushed him rightwards and that's reflecting in his votea.
I think Roberts will be known as the no. 1 worst chief justice rather than the 4th or 3rd longest serving. If he’d quit dying his hair like the sissy he is, we would know there is little chance he will make it to the second longest serving criminal of the supreme criminals.
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.
It's the third one. He doesn't care. He is a partisan actor working in concert with other partisan actors to try to cement conservative legal theory for decades to come. But that they are doing so in such a ham-fisted, nakedly illegitimate way will be their own undoing. History shows that you cannot hold back the tide of majoritarian will indefinitely.
And one cannot forget that this is all happening against the backdrop of an ethics crisis amongst the court's majority members. The court's majority is ethically, morally, and jurisprudentially corrupt for all to see.