The Roberts Court at 20: Looking Back and Looking Forward

A recent panel discussion on the current Supreme Court.

On Monday, I had the honor to participate in a Federalist Society press briefing on "The Roberts Court at 20: Looking Back and Looking Forward" at the National Press Club. Other participants included Kannon Shanmugam of Paul Weiss, Benjamin Mizer of Arnold & Porter, Stephanie Barclay of Georgetown, and Xiao Wang of the University of Virginia. CBS News' Jan Crawford moderated. Video is below.

Comments

[Jack Jordan]

Chief Justice Roberts (and Justices Thomas and Gorsuch) should be famous for betraying the principles that they admitted to knowing are the most important in our Constitution. In Gundy v. United States, 588 U.S. 128 (2019) they published a dissenting opinion that emphasized the following.

"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President [the power and duty to 'take Care that the Laws be faithfully executed']. And in Article III, it gave independent judges the task of applying the laws to cases and controversies."

"Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power" to restrict "the people’s liberty." "Other purposes animated the framers’ design as well." They knew well that "men are not angels and majorities can threaten minority rights," so they designed our Constitution "to guard unpopular minorities from the tyranny of the majority." Contrary to much recent conduct by SCOTUS justices (often anonymously purporting to protect and empower a president who is usurping tyrannical powers), our "Constitution sought to ensure that the lines of accountability would be clear: The sovereign people would know, without ambiguity, whom to hold accountable for the laws they would have to follow."

"The framers warned us against permitting consequences like these. As Madison explained, '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.’ The framers knew, too, that the job of keeping the legislative power confined to the legislative branch couldn’t be trusted to self-policing by Congress; often enough, legislators will face rational incentives to pass problems to the executive branch. Besides, enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”

[Frank Drackman]

“Dobbs” will end up saving more Babies than “Roe” murdered.
And it took a New York Real Estate Mogul to get it done.

Frank

[Jack Jordan]

Frank, I do not think the word "babies" or the word "murder" means what you think it means. What do you think those words mean?

[Frank Drackman]

I can play!
What do YOU think they mean?
And have you stopped taking it up the Poop Shute from Homeless guys?
See, that’s who I am, and that’s who you are.
As the Late/Great Foghorn Leghorn would say,
“Ah say Boy! Go away, you’re botherin’ me!”

Frank

[Jack Jordan]

Frank, I didn't use those terms. You did. That's why I asked you what you thought they meant.

[not guilty]

Frank, Roe v. Wade has "murdered" fewer "babies" than persons who have been asphyxiated in Ted Kennedy's Oldsmobile.

Like red and green or a circle and a rectangle, a murder and a lawful abortion are mutually exclusive. One cannot be the other.

And that has been so dating back to the "born alive" rule regarding murder at common law.

[Kafantaris]

Nobody knows what this Court will do — and likely it does know itself. One thing is clear, however: The Court must assert its power — or lose it. And it had taken more than two centuries for the Court to craftily accumulate that power.