Supreme Court

The Evil Magick of Chief Justice John Roberts

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Writing at Slate, legal commentator Dahlia Lithwick and New York University law professor Barry Friedman argue that "under the stewardship of its boyish chief justice, John Roberts, the [Supreme Court] has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it." Their article is titled "Watch as We Make This Law Disappear," and Lithwick and Friedman milk the image of Chief Justice Roberts as a master illusionist for all it's worth (Spoiler Alert: It's not worth much). Here's a representative passage:

How does the chief justice work to maintain the illusion that political ideology is not present on the Supreme Court while at the same time taking sharp steps to the right? He uses the illusionist's most famous trick of all: sawing the lady in half right before the audience's eyes. The Roberts court does some of its boldest work in cases where the ideological left splits internally, allowing the right to say that the issue is not ideological at all. . . .

This trick works just as well whether the conservative justices are splitting apart left-wing interest groups or their own colleagues on the left side of the court. In another of the decisions whittling Miranda away, Florida v. Powell, Roberts shrewdly gave the nod to liberal justice Ruth Bader Ginsburg to write the court's decision, which cut back on what rights the suspect must be read. In this term's Holder v. Humanitarian Law Project, the court split 6-3 by nabbing the only veteran on the left, Stevens, for a ruling upholding the statute banning "personnel" and "training" support for organizations designated as foreign terrorist organizations, even if all the support really was humanitarian.

It's a cute bit of writing, but is it accurate? Is Roberts practicing the dark arts before our very eyes? No, he's not. As the Harlan Institute's Josh Blackman points out:

When the Chief is in the majority, he assigns opinions. He can't assign all opinions to the conservative Justices. In fact, every year the Justices write about an equal number of opinions. Once in a while, he will need to assign an opinion to Justice Ginsburg or Justice Stevens. Florida v. Powell was 7-2 for most of the opinion. Hardly sawing the lady in half. And Roberts "nabbed" Stevens? JPS was unpredictable and independent. I do not think anyone, not even the Chief could nab JPS.

Lithwick and Friedman also claim that Roberts used the sawed lady trick in the Court's recent Second Amendment cases. As they put it, "A core of left-wing intellectuals joined hands with the right in supporting the gun-rights decisions in Heller and McDonald. They thus contributed to the sense that these decisions were acceptable to liberals." It's worth noting that this "core of left-wing intellectuals" who believe that the Second Amendment protects an individual right includes some of the country's foremost liberal legal scholars, including Lawrence Tribe, Akhil Reed Amar, and Michael Kent Curtis. The idea of these three serving as props for a conservative "illusion" is laughable.

And what about all those big liberal victories the Court has handed down since Roberts was sworn in? Poof! Lithwick and Friedman made them disappear from their article.

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  1. Lithwick and Friedman are like a retarded liberal version of Penn and Teller.

  2. I cannot understand how leftists can function while considering their ideological opponents to be both evil geniuses and knuckle-dragging morons all at the same time. Doesn’t this ever cause them puzzlement?

    1. Wrong thread?

      1. This pretty much works for any thread, actually

      2. Sort of a theme related to a few of the recent threads. Plus the site was wacky for a while, so I just posted here.

        1. Because they feel that they must be right. Logic and reason are not part of the analysis. The right has the same problem on a number of issues, but not on everything.

          We libertarians, of course, are practically Vulcans.

    2. Or conversely, that they are a bunch of highly evolved intellectuals yet fail to understand the basic tenets of rhetoric.

    3. Its called the Dubya disease.

    4. See, no one ever said Republicans were “both evil geniuses and knuckle-dragging morons all at the same time.” What we DO say is that there are evil geniuses in powerful positions in the GOP. It’s people like you, a.k.a. “the knuckledraggers, who are stupid enough to follow and apologize for them without question.

      They know they have you. Useful knuckledraggers you are – included are the folks who write this magazine. With rare exceptions, they have jobs because of the “evil genuises.” They’re paid NOT to ask tough questions. And Rush, Boehner, Hannity, Beck, McConnell… they all know you won’t question anything they do.

      Why?

      Because you don’t understand what they’re doing enough to complain or argue.

      That requires thinking.

  3. Oh that sneaky Roberts, pulling the wool over innocent Ginsberg’s eyes.

  4. Have they actually witnessed Roberts implanting the mind control chips into the other justices heads?

    1. “The Justices and I will now confer using high-speed telepathy.”

  5. Even left wing jurists are not immune from false consciousness.

    There is some need by the left to attribute losses on some sort of distasteful, unethical, possibly illegal shenanigans. They cannot wrap their minds around the idea that perhaps they have the weaker argument.

    1. Must be the tea-party. Couldn’t be that people don’t buy our BS.

    2. Or, that the justices are statist fucks.

    3. To be fair, if they thought they had the weaker argument, they would change their minds, no?

  6. And what about all those big liberal victories the Court has handed down since Roberts was sworn in? Poof! Lithwick and Friedman made them disappear from their article.

    i should point out they are not in your article either.

  7. How did Roberts nefariously manage to achieve a ‘sharp tilt to the right’ by joining the liberals and Kennedy to find the juvenile death penalty unconstitutional in Graham v. Florida? Wow, he really is sneaky.

    1. Sorry, “juvenile death penalty” should read “juvenile LWOP for non-murder crimes”

    2. See? That’s part of the problem. A finding that executing juveniles is unconstitutional is thought of as a “liberal” idea.

  8. The dedicated liberal of today opposes guns and screams when things go the other way. TRUE FACT: The state with the most gun controls (California) has a murder rate four times higher than the state with the least(Utah). Rational: Brady Campaign Scorecard and FBI Crime Report for 2009. Brady scored CA at 79, UT at zero. Murders were 5.3 per 100k compared to 1.3 for Utah.

    Lithwick and Friedman are crying buckets of tears but Heller and McDonald were decided correctly. These two just have a problem with the split between today’s progressives and true liberals of the Jefferson stripe. Jefferson carried a handgun on his walks and encouraged others to do likewise. And I am…. E. Zach Lee-Wright

  9. And what about all those big liberal victories the Court has handed down since Roberts was sworn in?

    Um… yes. What about those big liberal victories? Like… uh… um… hmmm…

    See? That’s part of the problem. A finding that executing juveniles is unconstitutional is thought of as a “liberal” idea.

    And the idea that the 1st Amendment protects teenage pot protesters just as much as politicized corporations.

    And the idea that habeas corpus extends to anyone in US custody.

    And the idea that the government shouldn’t be allowed to spy on you without a court’s permission.

    And on and on. For a libertarian blog, you guys are amazingly statist the moment a Republican grabs the reigns.

    1. C’mon now….the Koch brothers have a lot of payola to spread around. Can you blame Reason for trying to get some of it? I mean, sure, now days Reason twists & stretches the definition of ‘libertarian’ beyond anything recongnizable….but I’m sure money has nothing to do with it….they are libertarians after all!

  10. John Roberts is simply a brilliant jurist and he’s doing a superior job as the Chief Justice on the Court. This criticism is simply juvenile.

  11. Zifnab for President.

    I think my favorite part of this “libertarian” place (besides implying Boumedine and Hamadan are “liberal” decisions) is how conservative the “libertarianism” is.

    Say your school district wants “diverse” schools and the majority of voters elect school board members who decide integrated schools are a good thing (see, that’s democracy). Suppose the SCOTUS declares that your goal of integrated schools is actually contrary to Brown v Board of Education. In an Orwellian turn, Roberts uses the most famous school desegregation case in US history to tell us integrated schools are unconstitutional! He thus over-rules the majority of voters in a locality AND guts Brown and insults our intelligence. And, Damon Root and the “liberty” crowd like it!

    As Jeff Toobin has said about Roberts: In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”

    AND, “libertarians” love him? The guy who approves of the state spying on you, arresting you sans charges, gutting Miranda, threatening to throw out the exclusionary rule, etc and Damon Root thinks it’s much ado about nothing. Just join the Republican Party already, Damon. They really won’t care if you get high

  12. Justice Antonin Scalia accused Roberts of “faux judicial restraint” for implicitly striking down an old case while claiming to do nothing of the sort. . . . critics from Robert Bork to Richard Posner have been equally derisive.

    When will these liberals realize they just don’t have the intellectual horsepower to understand Roberts and do the respectable thing and agree with him?

  13. And what about all those big liberal victories the Court has handed down since Roberts was sworn in?

    First, I guess we need to define “liberal”.

    What are we counting as liberal these days? Is seizing land for redevelopment liberal, or conservative, today?

    If we want to go “olde schoole” civil rights counts as liberal, what about those gun control cases? Are those not civil rights, and therefor liberal, victories?

  14. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

    Or are we determining what is “liberal” by the identity of the winner, regardless of the legal principles advanced by their victory?

  15. The justices have to remember that they are to only look at the Constitution and Bill of Rights and understand why our Founding Fathers wrote it. They are not to make rulings based on liberals or conservatives feelings.

  16. Friedman and Lithwick rely on the claims of historians regarding the Second Amendment. The problem with such reliance is the academic historians’ amicus brief supporting gun control in Heller contained many factually incorrect statements. These have been documented and extensive essential information that was ignored by the historians has been noted in a 24-part series of articles entitled Root Causes of Never-Ending Second Amendment Dispute published at On Second Opinion Blog. Prior to that series and shortly after the professional historians’ Heller brief was filed with the Court, its historical errors and off-track nature were examined in an article entitled Why DC’s Gun Control Law is Unconstitutional published by History News Network.

    Justice Stephens’ Heller dissent is no more reliable than the error filled historians’ amicus upon which he relied for backup. As a result of the professional historians’ extensive sloppiness in their Heller brief, the ideological left’s opinions about the Second Amendment have been shown to be directly contradicted by the views of the Founders.

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