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Volokh Conspiracy

Judge Lynn Adelman (ED.Wi) on CJ Roberts's Confirmation Hearing: "Masterpiece of Disingenuousness"

"Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides."


I had never heard of U.S. District Court Judge Lynn Adelman. He was appointed to the Eastern District of Wisconsin in 1997. According to the ever-reliable Wikipedia, Judge Adelman found that Wisconsin's Voter ID law violated the 14th Amendment, and was considered for a Seventh Circuit vacancy.

Alas, now I am aware of Judge Adelman. He posted to SSRN a forthcoming article, titled "The Roberts Court's Assault on Democracy." It will be published in the Harvard Law & Policy Review, the official law review of the American Constitution Society.

Here is the introduction:

By now, it is a truism that Chief Justice John Roberts' statement to the Senate Judiciary Committee that a Supreme Court justice's role is the passive one of a neutral baseball "umpire who [merely] calls the balls and strikes" was a masterpiece of disingenuousness. Roberts' misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court's hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.

It has become en vogue for federal judges to criticize President Trump in such terms. But I don't recall seeing a lower-court judge charge the Chief Justice with being "disingenuous" or "misleading." Indeed, Judge Adelman has come close to accusing Roberts of committing perjury–a crime, and an impeachable offense.

Judge Adelman also offers partisan criticisms of President Trump:

The Republican Party has been particularly afflicted by the concentration of wealth at the top.25 The party's policy agenda is now determined by a small and unrepresentative number of individuals and corporations. President Trump's behavior after being elected illustrates this. Although he ran as a populist and promised to promote policies that benefited ordinary people, upon taking office Trump almost entirely reversed course. He appointed mostly wealthy far-right Republicans and their supporters to his cabinet and to key positions in his administration and supported health care legislation drafted by conservative Republican legislators that, had it passed, would have been extremely harmful to millions of low and moderate income Americans.

Trump also supported a tax bill that provided big benefits to the country's largest corporations and wealthiest individuals and virtually nothing to the majority of American taxpayers. Trump also promised to offer a major infrastructure program to provide well-paying jobs to American workers and modernize the country's transportation system. However, he has not followed through on this promise largely because it would require a considerable increase in domestic spending which influential Republicans oppose.

Because Congressional Republicans depend on a relatively small number of wealthy donors to stay in power, their major public policy goal is to do whatever makes such donors happy. And Republican donors are mostly interested in tax cuts, fewer regulations and less spending on anything benefiting ordinary Americans.31 And Trump, who has few commitments to substantive policies of any sort, found it much easier to ally himself with Congressional Republicans than to make an effort to enact policies beneficial to the general public.32 To follow through on his populist campaign promises would have required him to engage in the difficult and unpleasant work of bucking his own party. Thus, while Trump's temperament is that of an autocrat, he is disinclined to buck the wealthy individuals and corporations who control his party.

This screed could have come from a Bernie stump speech. It has no place in a publication by a federal judge.

I've skimmed the rest of the article. There is nothing new or original here. Judge Adelman merely repeats the same tropes we have heard for a decade. Citizens United. Shelby County. Conservative Legal Movement. And so on. The dagger note states that Judge Adelman "bears full responsibility for any errors." I agree.

I'm reminded of Judge Posner's apt criticism of Justice Breyer's book: "A Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all." Ditto for District Court judges.