Thursday, September 19, 2019

Why conservatives must fight judicial supremacism — and not hang their hopes on John Roberts

Willard/Getty Images
The reason why judges don’t stand for election is because they are supposed to look narrowly at the law, regardless of their political positions or political pressure from elites in media and culture. Yet Chief Justice John Roberts appears to be crafting vital legal opinions based on nothing more than a scorecard of how often each political side wins on a legal question. The latest revelation that Roberts might have changed his mind on the census case, just as he did on Obamacare, should give conservatives pause about putting their faith in a “conservative Supreme Court” rather than delegitimizing the concept of judicial supremacy in the first place.
Joan Biskupic, a CNN legal analyst and Supreme Court biographer, wrote an “exclusive” exposé on Thursday suggesting that initially, “Roberts was ready to rule for [Secretary of Commerce] Ross and the administration. But sometime in the weeks that followed, sources said, Roberts began to waver.”
The reason this report sounds credible is because, as I noted at the time of the ruling, if you read Roberts’ plurality opinion, the legal reasoning sounds like the opposite of his final order, the same phenomenon that gave away his flip in the Obamacare case. Roberts noted that the citizenship question is the essence of the census, has been with us for most of our history, and that nothing in the Constitution, census statute, or even the rule-making process under the APA precluded the president from doing this. But he then concluded that the case should go back to the lower court because he didn’t like the reason the secretary of commerce gave for why the administration chose to reinstate the citizenship question.
The problem with this rationale is that if there is no violation of statute or the Constitution, then how is there a valid case or controversy against the administration, regardless of the reason they give for a policy, especially something as obvious as asking about citizenship on a census? Whether you are a liberal or a conservative, his decision made no sense.
I have noticed in following many other Roberts decisions that he has an iron political motivation to avoid making the Supreme Court look too “conservative” at all costs. Thus, he finds ways to either allow liberal rulings to stand by not taking up appeals or uses tortured logic to join with the liberals on some other cases, but in a convoluted way that he thinks won’t offend his personal jurisprudence. He so badly doesn’t want to be political that he is more political than anyone else.
In the run-up to this past term’s grand finale in June, many court watchers and commentators that I follow were speculating about a “conservative sweep” in the critical cases. But Roberts found ways to side with the leftists. He did so on a number of criminal “rights” cases, executions, a global warming case, and an administrative state case, in addition to flipping on the census.
Read the rest from Daniel Horowitz HERE.

If you like what you see, please "Like" us on Facebook either here or here. Please follow us on Twitter here.


No comments: