Chief Justice Roberts has fallen into a "truly bottomless pit from which there is simply no extracting [himself]."

Roberts's self-professed humility depends on everyone being too dumb to see what he is really doing.

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I am, admittedly, very tough on the Chief Justice. Not because I disagree with his decisions. I routinely disagree with decisions from all nine Justices. No. I am tough on Roberts because of his arrogance. He entered this position fifteen years ago with a master plan: if there were fewer 5-4 right-left decisions, the Court will function better as an institution. And Roberts would cast decisive votes to reduce the number of right-left 5-4 decisions. Congratulations. But the means he chose to accomplish those ends have broken the Court, and the way it is perceived.

Shortly after Blue June, I wrote "Roberts's self-professed humility depends on everyone being too dumb to see what he is really doing." I firmly believe Robert's transparent Machiavellianism has done far more damage to the Court than Scalia's acerbic barbs or Kennedy's vapid prose. I can firmly disagree with a Ginsburg or Sotomayor opinion, but I know, and respect, why they reached the result they reached. For Roberts, every decision has to refracted through some bizarre political lens. His jurisprudential lodestar is the Gallup poll.

Chief Justice Rehnquist accurately characterized this dilemma in his handdown of Planned Parenthood v. Casey. This passage, regrettably does not appear in the published dissent. But it is worth listening to. We include the audio in our 100 Cases series.

The joint opinion's insistence on preserving the form, if not the substance of the rule, can just as easily be viewed as a surrender to those who have brought political pressure in favor of that decision. Once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.

The Chief's arrogance prevents him from recognizing the depth of this bottomless pit. He keeps digging, year after year. He is so locked into his ways that he cannot escape. He decided his gameplan in 2005, and absolutely nothing can make him change course.

Today's Washington Post includes a column by Varad Mehta and Adrian Vermeule that fully captures my perception of of the Chief. It is titled "John Roberts's self-defeating attempt to make the court appear nonpolitical." The essay begins:

"The highest art is artlessness," observed Francis Alexander Durivage, a now largely forgotten 19th-century American author: The appearance of acting naturally, without calculation, wins trust and admiration. In contrast, strategic behavior flagrantly intended to advance an agenda often creates public suspicion — which may undermine the aims for which the strategy is undertaken.

Chief Justice John G. Roberts Jr. might consider the Durivage Principle. In a number of important cases in recent years, observers on both left and right have concluded that Roberts has engaged in strategic maneuvering: His goal appears to be to preserve what he takes to be the legitimacy of the Supreme Court, by disproving any suspicion that the justices vote ideologically or otherwise engage in political behavior.
Yet because it is so clear that he is crafting opinions with this end in mind, the chief justice defeats his own aims. Roberts famously said at his confirmation hearing that the role of the justices is just to "call balls and strikes." No one thinks that is an apt description of his judging. By striving so conspicuously to depoliticize the Supreme Court, he has brought about the very thing he hoped to prevent: No one has done more to politicize the court than the chief justice.

Mehta and Vermeuele walk through Roberts's greatest hits, including NFIB v. SebeliusDepartment of Commerce v. New YorkJune Medical v. RussoDHS v. Regents, South Bay v. Newsom. There is one prominent Roberts 5-4 decision that doesn't fit the mold: Shelby County v. Holder. Only his longstanding, Reaganesque grievance against the Voting Rights Act allowed him to deviate from his master plan. And then, he gave the government one, last meaningless chance to repair the statute. (See pp. 88-90 of my article, SCOTUS after Scalia). I doubt Shelby County would come out the same way today.

Mehta and Vermeule conclude:

As chief justice of the United States, Roberts's solicitude for the reputation of both the court he leads and the entire branch of government of which he is the figurative head is understandable. Ultimately, however, his efforts to show that the court is not a partisan institution have provoked the right as much as the left. Two of Roberts's consequential legacies will probably be the very politicization of the Supreme Court he sought to prevent, and a Republican Party that is likely to turn "No more Robertses!" into a mantra — as it did "No more Souters!" The chief will have no one to blame but himself.

There is still a way for Roberts to escape this bottomless pit.

NEXT: More Judges Talk to the Press About Timing of Taking Senior Status

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  1. “Two of Roberts’s consequential legacies will probably be the very politicization of the Supreme Court he sought to prevent, and a Republican Party that is likely to turn ‘No more Robertses!’ into a mantra — as it did ‘No more Souters!’ The chief will have no one to blame but himself.”

    If only Roberts could be a dependable right wing hack, the GOP will be mollified and stop nominating more right wing hacks. Riiiight . . .

    1. My reaction too.

      And of course Shelby County comes out the same way today.

    2. He’s already a hack. It’s hardly surprising if conservatives would prefer that he be a right-wing hack, rather than a “politicize the Court by clumsily trying to avoid the appearance of being political” hack.

      Look at the “penaltax” he used to save the ACA. Only a hack could have come up with that. The left-wing members of the Court would have, did, just call it a penalty, and say that Congress could penalize failure to obey Congressional orders to engage in commerce. The right-wing member of the Court would have, did, called it a penalty, and ruled that Congress could NOT penalize people for refusing to engage in economic transactions.

      Roberts, neither a left-wing nor a right-wing hack, saved the law with a construction nobody else on the Court found sensible.

      1. The individual mandate has been repealed…and yet the ACA is stronger than ever?? Thank Satan Trump won the Republican nomination because he was the only Republican that would have not just saved Obamacare but made it stronger! Why would Trump make it stronger?? Google “Oscar Health” and you will find out. Hail Satan. 😉

        1. Never go full Kirkland.

      2. I still think “extortion.”

        1. Thereby refuting that possibility.

      3. Exactly. Had he just ruled with the left wing on the ACA then the GOP complaint would be that he is a leftist as evidenced by his (in this hypothetical) stated philosophy. That’s not new or unique. But it does allow everyone to accept the court as being upfront and forthcoming about why it does what it does, even when someone disagrees with it.

        But to rule how he did, with that pretzel logic, made the complaint not that he was a leftist, but that he was simply arbitrary. That is much worse on the court. There is no predictability in law at that point… which undermines people’s faith in the system.

        People can live under a law they disagree with as long as they can predict how it impacts them. But to live in a world where your guess is as good as anyone’s is a place no right thinking person would want to live.

      4. CJ Roberts didn’t invent constitutional avoidance. Nobody has adequately answered why a penalty that is dealt with through the spending clause is not, for that reason and no other reason, spending clause legislation. No one disputes that Congress could do the ACA with a “tax”. You’re the pedant here. The Constitutional structure of a Legislature deferring to SCOTUS does not depend on magic words.

        I don’t even know why you’re anti CJ Roberts. He sided with the conservatives re: commerce clause. He could have just gutted that, too.

        As for “nobody else in the Court found sensible” the court’s liberals didn’t need to address a savings construction. Once they determined it complied with the commerce clause, there’s nothing else to address. Of course the conservative minority disagreed with the savings interpretation, since their goal had nothing to do with the law, and more to do with tossing the ACA.

        1. The whole thing seems perfectly sensible to me. We use taxes to incentivize certain behaviors all the time. What else are tax credits?

          Objecting to the payment because Congress used the word “penalty” rather than the word “tax” doesn’t make much sense.

    3. As opposed to a left wing hack?

      Facts are that liberal justices vote more as a block than conservatives ones, and conservative ones get more liberal as time goes on and liberal ones stay the same.

      That’s the problem. Its a constant leftward move.

      We need that to stop.

  2. Someone should let Josh know that QAnon has hacked his account and is posting under his name.

  3. “Roberts famously said at his confirmation hearing that the role of the justices is just to “call balls and strikes.” No one thinks that is an apt description of his judging.”

    I do?

    1. Calling balls and strikes is what a robot will be doing very soon…so could a robot do the job of a Justice?? Judgebot 3000–now with the ability to strike a gavel AND keep a seat warm for 100 years while consuming even less energy than RBG!!

      1. AI replacing of judges is a good idea. The program would be written by the legislature. It would be responsible in torts for any product defect, e.g. the conviction of an innocent defendant, an unintended consequence of a decision, such as a rise in crime.

      2. While I’m a very wonkish-checklist-procedure kinda guy, the robot approach to law won’t work because laws don’t always have clear definitions and boundaries.

        I’ll defer to Justice Scalia to explain why laws should apply to other situations not SPECIFICALLY described in the law.

        “The Supreme Court further embraced an expansive view of Title VII in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), where Justice Scalia, writing for a unanimous Court, declared that ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’ Id. at 79.”

        1. The robot approach to law could work, but the laws would have to be subject to software validation before taking effect. Good luck with that, the legal code is the ultimate in spaghetti, deliberately, because obscurity was a design goal.

  4. I completely disagree. SCOTUS has been partisan for a long time. Both R and D nominate justices that they think will vote for their causes, and try to block those who won’t. Justices are not always reliable that way, but they have been in recent years. Roberts is doing his best in a hard situation and I think he is doing an ok job. It would be way worse if we saw only partisan decisions.

    1. Long time = very beginning.

      1. Yes, even John Marshall took a lot of crap when he was Chief Justice. 🙂

        1. Yes, we urgently need to go back to the hallowed days of John Jay!

          1. Burning effigies, perhaps? 🙂

    2. Justices don’t always rule the way we think they will once they are on the court, but they show their true selves rather quickly and a sense of predictability comes over the court. The problem with Roberts is that he is unpredictable due to no clear philosophy that can be fairly accurately predicted before a major ruling. What are his philosophical principles re: the role of the state in people’s lives? Based on the ACA case… who frigging knows? His predictability comes not from a view of justice but one of trying to be pragmatically apolitical in such a way that it unmoored him from any foundational ideas of right and wrong outside considerations of very corporate-like issues of the court as an organization. That is not what people want in a judge. He is essentially a judicial version of “I was against it until I was for it.” And the “until” seems to have no basis in an analysis of right and wrong on the facts of the case but on the perception of the court.

  5. If what is charged against Roberts here is true (I am not yet convinced) then has is also violating his oath of office. His job is to decide the case according to the law (whether Constitutional law or statutory), not change his vote for appearance sake.

    1. Just wait until I tell you about Chief Justice Burger.

      1. The fact that others have done the same thing before does not mean the person doing it today is right.

        Otherwise, every murderer could just cite Cain to get off.

  6. The second paragraph is word salad. It makes no sense. “transparent Machiavellianism” is oxymoronic. Deception, non-transparency, is fundamental to Machiavellianism. Go read the fucking definition of Machiavellian.

    If you had better evidence that CJ Roberts was guided by the “Gallup Poll” “lodestar” why would you resort to an obscure audio clip from 1992 to support your assertion?

    What does “bizarre” mean to you? How in the fucking world does that modify “political”? Your argument is that he follows mainstream political views. That’s wrong, but it’s by definition not following “bizarre” politics. I mean, you just told us that it was not unusual.

    We are assured in bold that “absolutely nothing” could lead the Chief from this bottomless pit from which he “cannot escape”. But are then assured “[t]here is still a way” for him to escape. Make up your fucking mind.

    To the idiots in the WaPo article, maybe they should focus less on Alexander Durivage and more on writing like human fucking beings. Why refer weakly to what his opinions “appear[] to be” when they are so confident about what they are? (“[S]o clear that he is crafting opinions with this end in mind…”)

    And the argument is nonsensical. They’re wrong that CJ Roberts’ opinions demonstrate perpetual depoliticization of the Court, but I’ll spot them for the sake of argument. You can’t politicize a Court by conspicuously depoliticizing it. That’s demonstrable enough: the opposite of conspicuous depoliticization is conspicuous politicization. Will the authors say that conspicuous politicization by a justice would depoliticize the Court?

    Thank God they’ve exposed the CJ’s opinion in Sebelius as the politics of legitimization based on input from… John fucking Yoo? Even he couldn’t convince anybody this tortured argument is merely subject to enhanced interrogation techniques. (And I only mention John Yoo because that’s literally the only authority they cite.)

    “It was especially notable that Roberts had voted in the minority in the Texas case to uphold the restrictions, yet argued this year that the court was now bound by that case’s precedent.”

    Ok. So was Scalia in Raich just following the Gallup Lodestar? And again, note the only source exposing this is an “anonymous conservative writer” who told “Vox” some shit. Well I’m convinced!

    This whole fucking thing is pathetic. If you have criticisms of the opinions, make them. Don’t let Tom Cotton speak for you. Just say what you think he got wrong.

    1. This is just becoming really sad and pitiful by Prof. Blackman. Newsflash: he’s a professor at a fourth tier school. There’s nothing wrong with or shameful about that, but nobody cares about him being “very tough” on the Chief Justice of the United States. Nobody. Least of all the Chief Justice of the United States.

      “Hey, look at me!!!!!!” is all these posts amount to.

      I really wish Covid were over so at least we could get more travelogues by Prof. Blackman. They were uninteresting, but at least they weren’t desperate.

      1. Hi, David. Why can’t you once formulate an argument of fact or of logic? All you do is hurl insults. I may not hire you for a lot of cases I have. I would be afraid of remarks by judges in a tribunal about your nasty mouth. What is the matter with you? You have a temper or something.

        1. I may not hire you for a lot of cases I have.

          “Nieporent bankrupted by loss of Behar cases.”

          Not anything I expect to see in the news.

  7. “There is still a way for Roberts to escape this bottomless pit.”

    Okay, so what is it?

    1. He lacked sufficient room in the margin to write it down.

      1. Well played sir. Well played.

        On another note, it’s nice to see the entire commentariat here – right, left, and center – coming together to agree on something.

      2. Fermat had two accomplishments that day: his last theorem, and his first meme.

        1. Not a coincidence that he was a lawyer/judge for his day job…

      3. Brett Bellmore : He lacked sufficient room in the margin to write it down.

        Nice! The proof of Fermat’s Last Theorem proof finally published by Andrew Wiles it was 129 pages long – which definitely wouldn’t fit in a margin very well. It’s a horrific thought, but maybe Blackman needs 129 pages to “rescue” Roberts…..

    2. I was gonna ask this as well…

    3. Sticking to a coherent methodology when deciding?

  8. Lol at Josh lecturing people about arrogance.

    1. He is the future of conservative legal academia.

      Thank goodness.

  9. It’s sad and sick. Just do what you think/know is right and forget the rest.

    “the chief justice had originally sided with the conservatives but switched his vote . . . he may have been influenced by a spate of commentary (including from President Barack Obama) warning of damage to the court’s legitimacy if the ACA were invalidated”

    Revolting. It’s the jurisprudential version of a Jeb Bush politician.

    1. “may have been influenced” lololol

    2. Remember when a Bush lied the country into an asinine war??? And W Bush proposed an amendment to outlaw gay marriage!! And Jeb literally spent $100 million attacking Rubio just so his son would be the most prominent Republican Latino!?! Do you really think anyone in the Bush family gives a shit about preserving anything other their power??

  10. I just came here to say Blackman’s response to everyone is that meme where the guy says “why are you booing me? I’m right”

    Shrug. It’s weird to me that someone let a guy who trades in empty claims and speculation as to what justices are thinking when they do things be a professor. Presumably that school produces some really… interesting krakens.

    1. South Texas College of Law is literally so bad that they got sued for trying to change their name to get people to confuse them with a better (but still distinctly mediocre) school.

  11. “There is still a way for Roberts to escape this bottomless pit.”

    Let me guess . . . start ruling in a manner desired by an authoritarian, obsolete religious extremist like Prof. Vermeule or by a disaffected culture war casualty from South Texas?

  12. I’ll see Vermeule’s “Durivage” and raise him one Albert Beebe White, Professor of History at the University of Minnesota in the late 19th c. Speaking of the role itinerant 13th century assize justices played among local networks of shire, hundred, and county powers (as paraphrased in Lyon’s Constitutional History):

    “The king’s justices were umpires, but the people had to play [the king’s] game.”

    By strategically holding the center of the court’s widening gyre, the Chief has arguably made the only possible choice in addressing cases that have percolated up according to the king’s game of national political divisions. Yes, most decisions coming from the Court are heavy on politics and light on the law, but that’s a consequence of consensus opinion writing and an overpaid and intellectually featherweight legal academy that rarely reads judicial decisions anyway. Depoliticizing opinions won’t increase their legal acumen, and until judges are smart enough to explain the law in a way that both parties can (however grudgingly) accept, rather than seeing the law as a craven tool of policy means, punctilious nonpartisanship seems a wise choice.

    Mr. D.

  13. I agree with Josh’s assessment … Roberts appears to have no apparent ideology whatsoever, which means that he is governed by the vicissitudes of his perception of public opinion.

    Ginsburg, Sotomayor, Kagan, Scalia, and Thomas differed greatly, but their positions reflected a logic that the average person could understand. By comparison, Roberts seems more like a politician than a judge.

    1. Fortunately, we have prof. Blackman to explain Roberts’ approach to interim injunctions to us…

  14. Observers like Blackman may simply be too dim to understand that Roberts during his tenure has been, fairly brilliantly, maximizing right wing political accomplishment. Problem is, Roberts is no ideologue, and Blackman is.

    Blackman excoriates Roberts for every ideological lapse. Roberts understands that all-ideology-all-the-time would be counter-productive for right wing outcomes. Roberts knows that doing what Blackman wants would so weaken the Court as an institution that its judgments could be defied at will, by anyone with power to do otherwise.

    Instead, Roberts has husbanded his right-wing bias, deploying it carefully where it gets the greatest long-term return. If you look at his record prior to the latest Trump fiascos, Roberts had never decided a political process case except on the side of Republican Party interests. In Trump’s election cases, the outlandishness of Trump’s claims combined with the size of Trump’s loss to forbid judicial intervention on Trump’s behalf. Thus, that became an exception in Roberts’ otherwise unbroken line of support for Republican politics.

    The election aside, using the law to politically empower the Republican Party is a far wiser tactic—and more effective long-term—than just handing Republicans a few legal victories in R-partisan cases could ever be, when those do not legally affect election outcomes. So Roberts reserves legitimacy capital for deployment in the kinds of cases which most empower conservative politics—while Blackman and others howl for his blood, because Roberts isn’t as doctrinaire, or as foolish, as they are about the culture wars.

    As a customary opponent of right wing politics, I find John Roberts formidable and imposing. I find Josh Blackman ridiculous and inconsequential. If I had a button I could push to replace Roberts with Blackman, nobody could react quick enough to keep my finger off that button.

    My new years’ toast: “Confusion to Trump Republicans!” Nothing could better advance that objective than putting someone like Blackman on the Court in place of Roberts.

    1. If you think Blackman’s an ideologue, well, then we are all ideologue’s then.

      1. Is your argument that Josh Blackman is the least ideological person that exists, therefore if he is an ideologue, everyone else in the world must be too? If Josh Blackman is an ideologue it probably means you’re an ideologue. But it wouldn’t mean, as an example, that Noscitur is an ideologue.

    2. Would you rather have a Scalia clone than Roberts?

      I honestly don’t know enough about Blackman to say where he falls on the ideological spectrum. He writes for Volokh so I assumed he leaned libertarian, but I could be wrong.

      In what ways is Blackman a conservative ideologue? On what social issues is he conservative rather than libertarian?

      Which cases would Blackman’s vote differ from Roberts’s vote in such a way that would hurt long term conservative interests?

  15. Hari kairi ….restore your honor.

    1. I assume your comment was aimed at Blackman, right?

  16. This, though, was genuinely breathtaking, coming from Blackman:

    “No. I am tough on Roberts because of his arrogance.”

  17. I am not going to be as hard on Blackman then some others.

    But I think Roberts is riggt that in order to maintain its authority over time, the Court has to have a core jurisprudence that both its right amd its left wings accept as the Court’s.

    If every time a new justice gets appointed, all the court’s major cases suddenly change overnight from 5-4 to 4-5 the other way, the court loses its ability to be a both a neutral arbiter of disputes and a trusted interpreter of the constitution. Its prestige will dissappear. Its members will be seen as nothing more than political hacks, whose “decisions” are mere ephemera overturnable at the next election, not to be seen as having any long-term binding effect.

    This is a real problem. I think Roberts is right to be concerned about it.

    1. Precedent plays an important role, true. But arbitrary arguments to get a ruling you want/need to uphold the “integrity” of the court so that rulings can be lasting and have precedent undermines the faith in those rulings.

      That and precedent over black-letfer Constituonal statements or over clear examples of justice/injustice is a terrible judicial philosophy. Wrong once, wrong forever is the opposite of justice.

    2. I don’t think Blackman, or any ther reasonable critic, is saying that Roberts’s vote should be a predictable rubber stamp for conservative interests. The constitution itself isn’t always a rubber stamp for conservative interests.

      I don’t think it’s crazy to want Robers to vote according to what he really thinks the constitution dictates, with no eye towards political expediency.

      Gorsuch doesn’t always agree with the other conservative judges and that’s fine, because, I assume, he is voting for what he truly believes to be the correct legal interpretation.

  18. Roberts. Lawyer. Harvard Law. Washington rent seeking Deep State. Epileptic. Stitches and concussion from fall, not caused by seizure. One of the stupidest people in this country, but thinks he is one of the smartest. Always wrong. Pure Evil.

    End our national agony from this totally out of control Deep State, rent seeking, big government, totally biased, little tyrant Supreme Court, with a Judiciary Act. Even number of Justices. Relocate to Wichita, KS. Make it the size of a legislature, 500 Justices. Disqualify anyone who has passed 1L. Enact a fast track to impeachment for decisions. Make impeachment automatic for violation of Article I Section 1, giving “all” lawmaking powers to the Congress.

    1. That’s an insult, not an argument.

      1. Ape. Beyond an insult, I support his impeachment for his lawless betrayal of the constitution. Get rid of this Ivy indoctrinated lawyer in open insurrection against the constitution.

        1. I don’t think you can impeach law professors.

    2. IS it Epilepsy, or is it something else?
      How functional is he? Do we know?

      We don’t really know what happened out on Hupper Island in 2007.

      Nor do we know if those who do are blackmailing him.

  19. I can scarcely believe what I am reading, in the blog post, and in these comments. Truly amazing…and I think not right.

    John Roberts has been Chief Justice for 15 years. His tenure is remarkable for the level of unanimity (the actual percentage of 9-0 decisions) he has achieved. He stated quite explicitly during his confirmation hearings that he would work to get unanimous decisions. He has delivered on what he said he would do. I thought that was the function of a CJ, to build a strong consensus amongst the Justices on SCOTUS decisions.

    The percentage of 9-0 decisions is up by over a third from when he started, and is way above the historical average. What I see is a CJ who consciously narrows the constitutional questions to be answered. What more do you really want? I’d much rather a CJ do his best to narrow the scope and expansiveness of rulings as opposed to widening them.

    I found the post, and the comments about CJ Roberts very off-putting.

    1. It’s not that hard to understand: He’s been driving up the percentage of 9-0 decisions by voting to deny certiori to important but hard cases, that were likely to result in 5-4 decisions. Preserving circuit splits, instead of resolving them.

      There’s nothing admirable about avoiding such cases.

      1. Brett, that is not the record I see. You call it denying cert, I call it prioritizing a scarce resource (SCOTUS can only decide 80-90 cases a term). You might disagree with the priority, but the objective data do not lie. CJ Roberts does get consensus, and this is exactly the quality you want in a CJ.

        I don’t always agree with his rulings. But I am certain of this: When the history books are written about him, he will be seen as one of the most influential CJs we ever had. And he is only 50% done (assuming he serves to age 80, which would make a 30-year tenure as CJ) right now. His is a very consequential tenure.

        1. SCOTUS can only decide 80-90 cases a term

          And yet last term they barely decided half that.

          1. They’re cowed by the Wrath of Josh. I wouldn’t take cases either if I were them.

        2. Is prioritizing cases that are likely to be 9-0 really the objectively correct goal of a S.C. Justice? Is avoiding cases that are likely to be close objectively good as well?

          I suppose I can see how it might be politically expedient to do this, and give off the perception of a controversy free SCOTUS, but I don’t know if it’s objectively in the interest of net justice.

          But then again my ideal use of the Supreme Court’s resources might be different than a lot of other people’s. I want SCOTUS to mostly protect the people from the overreach of government. So they should prioritize cases based on the net damage a bad law could be doing, rather than on how easy it will be to decide the case.

          That doesn’t mean they shouldn’t take the ease of deciding a case into consideration at all. If a case is gonna be an obvious 9-0 decision, then I suppose they know they are righting a definite wrong.

      2. Brett is correct. This is something that a lawyer or doctor would get. They have wonderful conviction rates or recovery states because they avoid the tough cases but the tough cases *are what you’re there for*.

    2. See, commenters? Commenter_XY and I are oil and water. We don’t agree on much. He may not even agree with me on Roberts. But XY here is right as far as he goes, and the points he mentions are important. Everything he says about Roberts is right, and he’s right about the other commenters too.

      1. lathrop is right….we do not agree on much. Heh, heh. 🙂

        Appreciate the shout out, lathrop. That was kind of you.

      2. So you think Roberts should get credit for taking the easy cases and avoiding ones that will probably be closer?

        I’m not saying there isn’t political value to that approach. It probably helps with the perception of a unified Court with no controversy.

        But I can’t say that this is the objectively best priority for net justice.

        You and I probably would disagree about what the most important practical function of the Supreme Court should be. Ideally, I want them to protect the people from the overreach of government. I want them to take the most important cases where liberty is concerned, and where failure to take the cases will result in the most suffering by people at the hands of the government.

        I can also see some practical value in taking the obvious 9-0 cases, as they are righting an otherwise obvious wrong.

        I concede that my priorities might not be the practically best ones. Maybe perception is more important than immediate justice. Maybe the loss of “legitimacy” ultimately hurts net justice more than I assume.

        But I do think justices should prioritize making the proper legal decision in any given case over worrying about political fallout from making the correct decision.

  20. The Constitution is only unclear when judicial activists want to interpret as they see fit, rather than as the law requires. Roberts has taken this to a new level.

    1. If the constitution was always clear then we wouldn’t need a Supreme Court.

      Do you think all cases that aren’t unanimously decided are cases where some judges are intentionally violating the constitution for the purpose of activism?

      I assume you think that anyone who disagrees with you about the proper constitutional interpretation is an insincere actor.

  21. Correction…there *was* a way. It’s probably to late now.

    I hope the next post on this blog is some caterwauling about the 6-3 decision letting Trump exclude illegal aliens from census counts.

    1. Too bad about the census case.

  22. John Roberts and I were partners in the same law firm, and I considered him a friend. Like others who comment here, I wish that he had ruled differently in some important cases. But I think some of Roberts’ critics forget that during John’s “formative years” (and mine, though I’m 12 years older ) one “school” of judicial conservatism was “judicial restraint”. I think Roberts’ opinion in the Obamacare case can be understood in “judicial restraint” terms. You may think it was wrong (personally I was ALMOST but not quite persuaded), but I don’t think it was corrupt or dishonest or whatever some of the folks who comment here think. It was a legitimate opinion by a particular kind of conservative justice.

  23. I find it interesting that no one bothered to notice or as it appears here is fashionable, to jump upon and berate, “The joint opinion’s insistence on preserving the form, if not the substance of “the rule”|[Roe], can just as easily be viewed as a surrender to those who have brought political pressure in favor of that decision.” Is that cite-king?
    Perhaps, in the attempt to elevate my standing to sophisticant, so I might join this discussion of higher LEARNING. However, the record would show I’m a tenth grade drop out who has been forced by his supreme court to proceed pro se to defend a habeas action. That habeas action was dismissed because I had been “convicted of, or sentence to a public offense”, so does not apply. And there I was trying to defend my right to access to a law library (there was none) and to stop the coercive punishment and retaliation for refusing to attend AA/NA, being Christian based and against my religious views.
    I’m glad I could be so educated by this. I’ve got my case won already.

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