Is John Roberts the New Anthony Kennedy?   

Like it or not, this is the Roberts Court now.


When Anthony Kennedy retired from the U.S. Supreme Court in 2018, he enjoyed the distinction of having been denounced by every major political faction in the country. For conservatives, Kennedy was the activist judge who "invented" a right to gay marriage. For progressives, he was the corporate shill who authored Citizens United. For libertarians, he was guilty of both enabling eminent domain abuse and squashing the rights of local medical marijuana users in favor of a national drug control scheme. At one point or another, everybody had cause to hate him.

Is John Roberts the new Kennedy? As the Supreme Court's 2019–2020 term came to its dramatic close in July, the current chief justice not only solidified his role as a swing voter in highly charged cases but managed to annoy practically everybody along the way.

Will the religious right ever forgive Roberts for siding with the Court's Democratic appointees to strike down an anti-abortion law? In Whole Woman's Health v. Hellerstedt (2016), the chief justice dissented when the Court overturned a Texas statute that required abortion providers to have admitting privileges at local hospitals. But in this last term's June Medical Services v. Russo, Roberts did the opposite, concurring in a decision that voided a nearly identical abortion regulation from Louisiana.

"I joined the dissent in Whole Woman's Health and continue to believe that the case was wrongly decided," Roberts wrote in a lone concurrence. However, "stare decisis requires us, absent special circumstances, to treat like cases alike," he continued. "The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana's law cannot stand under our precedents."

Plenty of progressives praised Roberts for that. But their cheers turned to jeers when he delivered a huge victory just one day later for both school choice and religious liberty advocates. "A State need not subsidize private education," Roberts wrote in Espinoza v. Montana Department of Revenue. "But once a State decides to do so, it cannot disqualify some private schools solely because they are religious." The Court has "long recognized the rights of parents to direct 'the religious upbringing' of their children," he observed. "Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution."

And then there was Seila Law v. Consumer Financial Protection Bureau, in which the chief justice led the Court in declaring the single-director structure of the Consumer Financial Protection Bureau (CFPB) to be unconstitutional. "The CFPB Director has no boss, peers, or voters to report to," Roberts pointed out. "Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy. The question before us is whether this arrangement violates the Constitution's separation of powers." Roberts held that it did. Not exactly a happy outcome for supporters of the administrative state.

Libertarians, of course, were criticizing Roberts before it was cool. In 2012's National Federation of Independent Business v. Sebelius, Roberts characterized his vote to uphold the Affordable Care Act as a demonstration of conservative judicial restraint. "It is not our job to protect the people from the consequences of their political choices," he wrote, invoking as a role model the early 20th century jurist Oliver Wendell Holmes Jr., who once declared, "If my fellow citizens want to go to Hell I will help them. It's my job." That deferential approach is the antithesis of the libertarian legal movement's vision of the judiciary as a strong bulwark against overreaching government.

On many of the biggest and most contentious legal issues of our time, the chief justice stands at the center of the SCOTUS storm. Like it or not, this is the Roberts Court now.


NEXT: Brickbat: Up in the Morning and Out to School

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  4. Only when John Robert’s is intangeled naked in the sheets with rbg and screwing their brains out. (that ones for you soldier medic)

    1. Jewish GMILFs, like Jill Stein, turn me on but RBG’s leathery hide is so revolting a Nazi commandant would toss it.

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  5. PenalTax Roberts? Do we need to ask the question?

    1. He was right about that one.

  6. Judicial Wrongdoing

    Excerpt from the novel, Retribution Fever:

    “True law is right reason in agreement with Nature. It is of universal application, unchanging and everlasting. It summons to duty by its commands and averts from wrongdoing by its prohibitions.” -Marcus Tullius Cicero (106-43 BC)

    Common sense through experience bears witness that any modern society needs law administered by judges who settle disputes in an orderly, preferably non-violent manner based upon rules of evidence and established procedures. Ah, but how to do so?

    In that regard, the drafting and signing of the Magna Carta (1215) by King John (1166-1216) had heralded a new era in the dispensing of English justice. In writing, it officially set the Rule of Law above the Rule of Men. More than five-hundred years later, it created the context for the drafting of the first Constitution of the United States of America.

    Article III of that constitution had established a national system of federal courts with judicial power “vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”. The message was clear. Ultimately, elected legislators control non-elected judges not vice versa. Were it the opposite, who would control the judges?

    Never in history has a court been given then usurped the power of our Supreme Court. No reign on that power current exists operationally. That power must be contained, else nine, non-elected lawyers rule the nation. How?

    “Ask, and it shall be given you; seek, and ye shall find; knock, and it shall be opened unto you.”

  7. The Wisconsin Supreme Court reversed itself yesterday allowing Wisconsin to send out ballots for the November election. The change occurred because Justice Hagedorn, a conservative, sided with the three more liberal members of the Court. There are conservative judges and justices like Roberts and Hagedorn who will look at the impact of their decision and make the best decision. This may disappoint those who appointed or elected them, but it also shows that they are more concern with their decisions than in appealing to a selected group. These are really the type of judges that we will continue to need. Robert like Kennedy understands the importance of his roll on SCOTUS.

    1. Robert like Kennedy understands the importance of his roll on SCOTUS.

      Specifically, to legislate.

      1. … for the Ruling Class.

    2. Yes that was some democrat scheming to keep the greens off the ballot. Nice try fuck stick.

      1. Is that any different from scaring people about mail in ballots to keep people from voting? Any different from moving polling places? From dropping primaries to avoid having your President challenged? Not really.

        1. Bill Weld would have swept the primaries if not for the Orange Man’s evil machinations.

    3. How about judges who just follow the Constitution, as it was written [textual] and intended [original]? In this sense Gorsuch embodies the best of these ideals, nor does he kowtow to whom appointed him.

      Respect the Bill or Rights and all of the other limitations on government as enshrined in that document, and do whatever is necessary within those confines, but no legislating from the bench in order to achieve a “desirable” outcome. That responsibility belongs to Congress alone. They alone are accountable to those who elect them, not judges.

      1. Note legislating from the bench works both ways. Certainly Citizens United was legislating from the bench. Where in the Constitution does it say money equals speech. We can see that textualism get thrown out the window when it doesn’t agree with your values. I once saw Justice Scalia on Sixty Minutes say that the Eighth Amendment prohibiting cruel and unusual punishment does not preclude torture. So this idea that there is some standard for judges and justices is fertilizer. All judges and justices will use their experience and their views of the law to shape their opinions.

        1. Where in the Constitution does it say money equals speech.

          So there is no 1st amendment question here whatsoever. Yep, it’s just money equals speech. It’s no biggie that the government wants to regulate who can say what about which candidates and when. Only news organizations with a special permit can do that!

          1. If you advocate for textual interpretation or original intent, then no I don’t think there is a 1st amendment question. The constitution does not say money equals speech nor to my knowledge have any of the founders advocated that idea.

            1. I don’t recall any founders stating that it should be illegal to publish things about candidates just before elections, either. In fact, they seemed pretty against prior restraint in general.

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    4. In every significant 2nd amendment case in the last few years, at every level Obama and Clinton judges voted for gun restrictions. If you believe the 2nd amendment confers an individual right to keep and bear arms then you would be wise to vote for Donald Trump (or the Libertarian guy, what his name … Joe Jorgenson).

  8. Kennedy’s votes were principled; You could almost always predict where he’d land by his past votes

    If Roberts’s votes are principled, the principle is to make the fewest waves possible; He almost always votes on the side of deference and stare decisis. Also, in 6-3 cases he will often vote with the majority in order to assign the opinion to the Justice who will make it the least broad (e.g. the recent Bostock case)

    1. Kennedy’s votes were principled except for Ogberfell. That was the worst reasoned decision in my lifetime. It was nothing but Kennedy deciding he really liked gays such that they had a right to marriage but not so much of a right it could be extended to polygamists, whom he presumably didn’t like.

      1. The question of whom you are allowed to marry (see Loving v. Virginia) is different from how many whoms you are allowed to marry

        In one case you have 2 people, both of whom are legally eligible to get married (just not to each other) must be allowed to marry each other. This is identical to Loving

        In the other you have 2 people, at least one of whom is NOT legally eligible to get married on account of already being married, do not need to be allowed to marry. This is very different from Loving (otherwise people would have been making the same comparison with Loving as they are with Obergfell)

        Although I do believe that polygamous cohabitation should not be criminalized

        1. There is nothing magical about two. Loving was decided because race is a protected class under the 14th Amendment. You couldn’t tell people that they can’t marry another race because to do so is to discriminate on the bases of race, which prohibited by the 14th Amendment. You could tell them they couldn’t marry their cousins or their brothers because familial relations is not a protected class in the same way race is.

          Not allowing gay couples to get state recognition of marriage is only analogous to Loving v. Virginia if you think being gay is a protected class the way race is. The easy way to decide the case would have been to declare sexual orientation to be a protected class and then just sited Loving. Kennedy didn’t want to do that. So, instead he made up a bullshit concept of “the right to be with the one you love” and said gays had a right to marry because of it. Since it is “the one you love” then polygamists are out of luck. Why it has to be one is something Kennedy really couldn’t explain other than to say well that is how it is always been. And why right of being with the “one you love” doesn’t apply to people who want to be with a sibling, Kennedy can’t really explain either.

          There is no defending the reasoning of that decision. It was judges deciding that they liked gays and thought gays should get government recognition of their marriages. It was legislation from the bench and nothing else. Kennedy should have just given the decision and written “fuck you that is why” in the discussion. It would have at least had the virtues of honesty and brevity.

          1. On the contrary, you can say no state should be allowed to allow same sex marriage, because marriage was developed specifically for persons of the opposite sex. Family law in general is an anomaly in our mosty libertarian system of law, which treats people as individuals; it’s a pragmatic exception because the family is a commonly accepted and useful legal unit. But those exceptions should be kept as few as possible. If people want to incorporate and others want to deal with corporate entities, that’s fine; but nobody should be made to deal with an individual as if a corporate entity. The common law of marriage recognizes a condition pre-exists both church and state, and it’s man + woman, period. Trying to legally redefine marriage is equivalent to redefining common-law money terms, which injustice sovereigns have already pulled off.

            Polygamy is a different issue, referring to the number of marriages a person can partake in simultaneously. It’s not true plural marriage, which common law does not recognize. It’s A married to B and A also married to C, not A+B+C equilateral. I don’t think there should be a prohibition on polygamy, just on persons misrepresenting their married state to potential extra spouses.

          2. Of course men like gays. They make for less competition for women.

          3. Constitutionally, there is no such thing as “a protected class”. We are all equally a protected class when we are citizens of the United States, and some of these provisions [like due process] also apply to anyone in the legal jurisdiction of the US regardless of citizenship.

            Quite the opposite. Laws relative to a protected class make special citizens with extraordinary rights. If it is illegal for the federal government to hire based on race, then hiring quotas based on race are equally unconstitutional. But neither of these options can constitutionally be imposed on private parties. This isn’t a popular concept among either the right or the left, but it is nevertheless true. It isn’t to say that these things couldn’t be made constitutional… by amending the Constitution if there was the political will to do so. But we do lack the will to do so and as such, invent rights and duties and torture the text of the Constitution to make it so.

            This doesn’t mean that the court can change the long established definition of words or institutions. There is no constitutional authority for that whether you want the change or not. The purpose of the court is to apply the Constitution and hold itself and federal authorities responsible, not redefine the language or invent definitions that make certain powers feel good.

        2. It’s laughable that homosexual marriage became the law of the land because there was no “rational basis” to restrict the marriage contract to “one man, one woman”. The unconstitutional DACA framework remains because the agency failed to provide a “reasoned explanation” for ending DACA. according to the swing vote, Chief Justice Roberts.

      2. You don’t have to be gay to get same sex married. The problem with the decision is that the government shouldn’t issue marriage licenses at all.

        1. ^ This, in a nutshell. If not for the tax issues and special status, it would have been moot.

        2. I agree government shouldn’t license marriage, any more than they should license dogs. However, that doesn’t settle the issue of how to legally recognize a marriage, how to determine who is married. That should be a question of fact, and the fact is that two of the same sex can’t be married to each other.

          1. I agree with you, my personal opinion not withstanding. Words have meanings and court-ordered change of those meanings is a seriously slippery slope. Should the court change the meaning of the word “contract” or “law” because a group wants it? The question is for the people and their legislators to create any new institutions it wishes, but those those who want those changes aren’t willing to do the hard work and/or can’t get consensus. The will of the people should survive, not the will of the court.

  9. He would like to be. Whether he has that chance depends on the election. If Trump wins, he will no doubt replace RBG. And that someone likely will be a more principled conservative than Roberts. I would be hard for anyone not to have more principles than Roberts. If that happens, the court is 6-3 conservative, and Roberts will no longer hold a swing vote. He would have to find someone else to go along with whatever sell out he is peddling.

    1. Well, Trump has to win first. I was shocked this morning to see a column in the local paper, written by my attorney – a Rotary president and conservative – virtually urging seniors to vote for Biden because Trump’s plan will bankrupt social security and throw continued benefits from the general fund in the hands of a feckless Congress. Not good in a close swing state.

      1. Yeah, I am sure that guy is a “lifetime conservative” just like all of those “lifetime gun owners who finally think the NRA has gone too far” newspapers always publish. Regardless, BLM killing cops and burning down cities likely will have a bigger effect on swing states than any newspaper editorial or scaremongering on social security.

      2. As you noted “a conservative”. Conservatives are not Trumpites and many would not chose Biden if they had a better alternative. Biden is what the liberals, moderates and conservatives have and they will go with that.

        1. What would you possibly know about conservativism?

          I don’t run around trying to bullshit you about which politician is a good leftist or not.

          Trump is not a conservative. Goldwater, Burke, William F. Buckley: all would likely have little to do with him. A conservative isn’t running in this race though. The choice is between a populist who mostly wants to deregulate the economy and pull back the US military from its foreign entanglements, or a 40 year Senator whose every move in office has been towards increasing government power.

          The choice for conservatives is really damned easy this go around, and it isn’t Biden, or Jo.

          1. “Keep the government out of my Social Security!”
            t. Conservative

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          2. Well said Gray; moderation loves to peddle his preferred candidate [Biden] under a guise of fiscal responsibility; all that would lead to is what moderation really wants, and that is a very enlarged and intrusive [not to mention expensive] government to make us all “behave” so we can have “justice and equity.”

            Regardless of whatever happens, no one is going to be holding hands in a circle and singing kumbaya. The best that can happen to any of us is an outcome that will most ensure we retain some semblance of those rights designated by our foundational documents. The loss of personal freedoms [and more government, no matter how well intentioned] is not going to help anyone.

          3. “What would you possibly know about conservativism?”

            I read a wide variety of opinions and use them to form my personal opinion. As a moderate I consider opinions across the spectrum. What I have noticed is most conservatives (Wills, French, Charen, Hogan, Kasich, etc) have shifted to Biden, with the assumption they can rebuild and mount a challenge in 2024.

            I see a variety of opinions trying to explain Trump. Some say he is a populist, or racist, while others a person without a fixed ideology. What he is a narcissistic grifter.

            1. As a “moderate”, I have yet to see you espouse anything other than leftist views, which makes you not-a-moderate…. unless of course we are still counting Joe Biden and Hillary Clinton as moderates, which I’m sure you do. The list that you gave aren’t conservatives [and neither am I]. They are neocons by every definition and mostly globalists and statists.

    2. The SC is a game of micropolitics, and Obama committed a masterstroke with the appointment of Kagan.

      That’s what I think the Kavanaugh appointment was primarily about: influence on Roberts. Like Kagan, BK is a consummate political hack and he shares much more overlap in terms of background and philosophy than the judges that the Republican base (and libertarians) tend to favor.

      1. Overlap with whom? And Kagan is no more or less a political hack than any of the other liberals on the court. If a judge who is thought to be a conservative is appointed, there is about a 50 50 chance they will actually be that and turn into an Alito or a Thomas and not turn into a Kennedy or a Roberts. Liberal judges, however, never turn out to be conservative or anything other than liberals. There is no liberal equivalent of Suiter or Earl Warren. Once a judge is part of the liberal hive mind, they never escape.

        That makes appointing judges much more difficult for Republican Presidents than Democratic ones. A Democrat is pretty much guaranteed to get a hack no matter who he appoints. A Republican is rolling the dice.

        1. Overlap with Roberts.

          And Kagan is no more or less a political hack than any of the other liberals on the court.

          I disagree: Kagan has spent her whole career playing the game of small-group bureaucratic jockeying that Roberts clearly is susceptible to. Breyer has a similarly background as a member of the executive branch prior to his elevation to the bench. BK’s background is pretty similar to Breyer’s overall, and I would expect him to bring a similar mindset but from the opposite angle.

          Sotomayor and RBG were not brought up in Fed Gov, and are far more ideological in nature. While the results are similar and they’re similarly loyal, the tone in opinions is different and the types of cases where they cross over are different.

          I agree that the Democrats are more likely to get a loyalist regardless of background, but the left has long been far less intellectually open-minded than the right.

          1. Judging by voting patterns all dem appt’d judges are hive-mind hacks

            the only question on politically charged decisions is where the conservative appt’d judges will land. why is that then?

    3. John…I see Roberts differently than most. To me, he is the consummate conservative. He has been chief Justice since 2005. If you look at the decisions during his tenure, nearly half are 8-1 or 9-0. That is above the historic norm. He builds consensus, which is what you want in a chief justice. He invariably narrows the constitutional question to be answered, and occasionally kicks cases back down to the circuit/district level to get more fully developed, or resolved. I thought those were the behaviors we wanted to see in a chief justice.

      If POTUS Trump wins re-election, and Team R retains the Senate, it is a straight shot to keep restoring the Judicial branch.

      1. “If POTUS Trump wins re-election, and Team R retains the Senate, it is a straight shot to keep restoring the Judicial branch.”

        Will certainly be interesting to see how “Chief Justice Consensus” votes after that.

        1. Truthfully, he will not change. Nor do I believe that he should.

  10. Still hoping Trump gets a shot at replacing RBG with a conservative. But looking less likely. That would be a coup. I want those democrat tears.

    1. I’ve coined a new expression: “Gonna hang on like Ginsberg.”

      From a medical perspective the woman is already dead, just maintaining essential life functions, which will cease on immediately after January 20th. It’s going to come down to who wins this election, and while it sounds like hyperbole and pablum, given the inevitable consequences this is the most important election of my lifetime [and I am not young].

  11. Kennedy? Try Souter. Roberts is a Bush judge, muddled reasonings with little basis n facts. Roberts makes a point of “respecting the integrity of the court”, something he threw out the window with both his Obamacare rulings.

  12. always gives off an aura of ruling out of spite.

  13. Worst 3-D picture I’ve ever seen.

  14. I think he’s more like the new RuPaul.
    Digs the outfit and crossing over a little too much

  15. Why has this not been obvious since his Obamacare verdict? How slow can anyone be to not see Roberts in the same light as Roberts (as in Owen Josephus). The most recent Roberts isn’t protecting the nine, he uses tortured logic to rationalize his political views.

  16. NO, Chief JUDAS, John Roberts is NOT the new Anthony Kennedy, he is the new Earl Warren!

    IMPEACH Chief JUDAS John Roberts!

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  18. For those of you who don’t like Trump this is one reason to take him over Biden. There may be plenty to take issue but a 2nd term and his legacy won’t be executive orders it will be a judiciary that is more faithful to the constitution for a generation and Supreme Court where Roberts will be the minority opinion.
    From a former Gary Johnson voter all I can say is MAGA.

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