New reporting from the New York Times raises some troubling questions about how (and how much) Chief Justice Roberts understands the Supreme Court's relationship with the public.
I was very surprised about how open the Justices were about ignoring the case before them and setting policy. I thought the courts were there to decide the cases in front of them, not to set national policy.
I'm also surprised about how little criticism has come from these remarks.
The NYT articles quotes the Justices during oral argument:
“I’m not discussing the particular facts of this case,” Justice Alito told the courtroom.
“I’m not focused on the here and now of this case,” Justice Kavanaugh said. “I’m very concerned about the future.”
“We’re writing a rule for the ages,” Justice Gorsuch said.
Absolutely correct. The Constitution says that the Court is to decide cases or controversies. Robert's decision itself and the statements made by the 3 so called Conservatives was simply an artifice to enable them to pretend that they were "saying what the law is" when in fact they were engaged in an utterly Unconstitutional and morally bankrupt attempt to retore the defeated candidate to the Presidency.
I was beginning to think I was misunderstanding the timing. Maybe it shouldn’t be astounding that they made up their minds before they heard the arguments, but it is. AND, he put it in an email!!! This is a clear indication that he doesn’t give a damn about out public perception of the court because he knows well enough if you don’t want information to be known, or known to have come from you, don’t write it down!
This article provides us with the best example yet of Roberts simultaneously (1) caring about public opinion (which seemed obvious through inference before, but reassigning Fischer makes it very clear) but (2) being oblivious to how the public will actually receive it. It's like he's watching an entirely different ballgame than everyone else.
Congress has the power to reform the Supreme Court. Harris by her lonesome doesn't have the power to do much. Dems have to gain full control of Congress.
Except it unconstitutionally revested the House's power to investigate grievances against the US judiciary. Where? In the Judicial Conference of the US, a private body made up of US judges & justices themselves - and headed by none other than the Chief Justice. Please bug your MoCs to repeal this!
Judge Easterbrook's article "The Most Insignificant Justice: Further Evidence" flags something I read about before (perhaps in Finkelman's book) -- Justice Duvall penned two slavery opinions, one a dissent, that took their interests seriously. Every dog has his day.
An excellent opinion of the Times article. More transparency concerning the Court and its decisions is welcome. I understand the Court would prefer to speak through the written opinions, but the public should get more information about the process leading to these important and controversial decisions. I applaud the Times and Steve’s analysis of the story.
See my note. Roberts, Kavanagh + Barrett were in FL in 2000 during the Brooks Brothers Riot. That should be in _every_ article on this Court, including Cantor and Liptak's excellent piece.
I would like to hear more about the distinction between optics and politics. I get the general gist of it, that Chief Justice Roberts cares about the image of the court more than actually intervening in the politics that affect its image; but to me that distinction seems to similar in intent and result to have a clear distinction between the two.
I'm no lawyer, much less a legal scholar, but as an "average American," I still can't get past all of the "rule for the ages" nonsense and the many comments from the Bench about not focusing on this particular case... Whatever the legal issues, it seems patently clear that the justices were avoiding the violence, fever swamps and lies that now the majority of the registered Republicans in this country believe. How these well-educated and elite jurists can't see that they are seriously harming the country and the Constitution is beyond me.
I also keep having nagging thoughts about judges in more authoritarian times in other countries who found themselves on the wrong side of their dear leaders after giving those leaders all of the power to do whatever they wanted, and when courts tried to push back even a little bit, those same judges ended up tossed to the wolves. I wondered if they were simply trying to avoid more harassment, or bending to the authoritarian before being asked. Timothy Snyder says that is one of the biggest mistakes that those in power can make, and not only do we see it with the press, the GOP en masse etc, but also with the Court. They keep grabbing more power for themselves and I don't know how they think that this will end well.
The Preamble's Posterity clause prohibits making any "permanent" law, ruling, order, etc. It operates in two ways. 1: Posterity is also "we, the people," with the same right to self-governance the Framing generation had; in the context of ratified text this means every officer has the same power in every generation. Nobody can add anything "forever" by any means but Article V amendment. And 2: No matter how many times text is violated by statute or ruling, it always controls. History is meaningless here. If 100% of US law violates the Constitution, 0% of US law may be enforced.
Thank you for the explanation. I have some questions about how this works in practice, but I will try to figure them out without highjacking this thread. I love learning more about all of this. I wish I had gone to law school...
To characterize Robert's view of how the public perceives the court as "superficial" is generous. He absolutely refuses to consider an enforceable ethics code and wont even deign to appear before the Senate Committee to say why that is so. Yet, when days after the upside down flag story broke, he takes the unprecedented step of taking the decision away from Alito. This of course completely invalidates Alito's snooty response to Durkin purporting to show that he is above reproach for remaining on these Election Cases . But , Robert's only took that step because of the realization that an opinion by Alito overturning any of the January 6 convictions would be met with open public derision and that would have made it impossible for Roberts to provide any relief to Trump and the perpetrators of the January 6 insurrection. Ironically, Robert's re-assignment failed because it gave Brown-Jackson the leverage to change her position and force the cases to be returned to the trial courts which ARE objective and unbiased.
I was a bit surprised that the Times article found it uncertain whether a president could be prosecuted for bribery. That was the whole point of Justice Barrett' concurrence raising her objections to the evidentiary limitations invented by the majority. The Times found ambiguous the majority's fn 3 (the Times did not reference the footnote number). I found it unquestionably clear in the affirmative, and a clear response to Justice Barrett. Tom Crane
This doesn't mean that no other factor in that equation can invalidate a claim to the office, of course. For instance, Steve mentioned a submitted elector's vote can be disqualified if that elector was not properly appointed by state election (Art II §1 as amended by Amdt XIV §2 & Amdt XXIV). In 2024 Congress can invalidate Harris' electors but frankly, the electoral process has been dragged so far from text it could apply to any elector in any year.
I disagree with the details of this comment, though not its overall spirit. I would say that Roberts has determined that the best way to avoid becoming a minor member of the Alito Court is to make sure that the Roberts Court does everything that the Alito Court could possibly want it to.
There is an interesting sidebar to this issue. The Wal Street Journal today ran an Op Ed on the New York Times Article that is the foundation of Professor Vladek's analysis. You will be shocked---positively shocked--- to learn that the Editorial Board of the WSJ complains that the "slant" of the Times piece distorts the ethical and analytic purity of the way in which the Court is behaving. This is the same Board that let Alito write an Op Ed falsely claiming that Congress has no jurisdiction over the Court. And its view of the information leaking from the Court is "unslanted" Really?
What disturbs me most is that, obviously naively, I had held to the hope that Chief Justice Roberts was trying to do the right thing (as he sees it) and keep to some version of “calling balls and strikes.” (Although that is an inaccurate analogy for what a judge, particularly a Supreme Court Justice, does, as then Senator Biden and Senator Kohl pointed out in Roberts’ confirmation hearings.)
Instead, the conclusion I draw from the NYT reporting is the Chief Justice reacted to “losing control of the court” in the worst possible way — by changing his own judicial philosophy and adopting a much more aggressive conservative position regardless of the consequences. It might be he is trying to be the judicial equivalent of those who justified their service in the first Trump administration by saying they were trying to prevent worse outcomes. In my view, those who made that argument would have better served the country if they had resigned in protest, stating publicly (and loudly) their reasons for doing so. Perhaps that is now true of Chief Justice Roberts as well.
I was very surprised about how open the Justices were about ignoring the case before them and setting policy. I thought the courts were there to decide the cases in front of them, not to set national policy.
I'm also surprised about how little criticism has come from these remarks.
The NYT articles quotes the Justices during oral argument:
“I’m not discussing the particular facts of this case,” Justice Alito told the courtroom.
“I’m not focused on the here and now of this case,” Justice Kavanaugh said. “I’m very concerned about the future.”
“We’re writing a rule for the ages,” Justice Gorsuch said.
Absolutely correct. The Constitution says that the Court is to decide cases or controversies. Robert's decision itself and the statements made by the 3 so called Conservatives was simply an artifice to enable them to pretend that they were "saying what the law is" when in fact they were engaged in an utterly Unconstitutional and morally bankrupt attempt to retore the defeated candidate to the Presidency.
I was beginning to think I was misunderstanding the timing. Maybe it shouldn’t be astounding that they made up their minds before they heard the arguments, but it is. AND, he put it in an email!!! This is a clear indication that he doesn’t give a damn about out public perception of the court because he knows well enough if you don’t want information to be known, or known to have come from you, don’t write it down!
This article provides us with the best example yet of Roberts simultaneously (1) caring about public opinion (which seemed obvious through inference before, but reassigning Fischer makes it very clear) but (2) being oblivious to how the public will actually receive it. It's like he's watching an entirely different ballgame than everyone else.
Another reason why Harris has to reform the Subject Court. Trump’s legacy is destroying justice in America.
Congress has the power to reform the Supreme Court. Harris by her lonesome doesn't have the power to do much. Dems have to gain full control of Congress.
Congress can impeach.
Except it unconstitutionally revested the House's power to investigate grievances against the US judiciary. Where? In the Judicial Conference of the US, a private body made up of US judges & justices themselves - and headed by none other than the Chief Justice. Please bug your MoCs to repeal this!
Judge Easterbrook's article "The Most Insignificant Justice: Further Evidence" flags something I read about before (perhaps in Finkelman's book) -- Justice Duvall penned two slavery opinions, one a dissent, that took their interests seriously. Every dog has his day.
An excellent opinion of the Times article. More transparency concerning the Court and its decisions is welcome. I understand the Court would prefer to speak through the written opinions, but the public should get more information about the process leading to these important and controversial decisions. I applaud the Times and Steve’s analysis of the story.
See my note. Roberts, Kavanagh + Barrett were in FL in 2000 during the Brooks Brothers Riot. That should be in _every_ article on this Court, including Cantor and Liptak's excellent piece.
I would like to hear more about the distinction between optics and politics. I get the general gist of it, that Chief Justice Roberts cares about the image of the court more than actually intervening in the politics that affect its image; but to me that distinction seems to similar in intent and result to have a clear distinction between the two.
I'm no lawyer, much less a legal scholar, but as an "average American," I still can't get past all of the "rule for the ages" nonsense and the many comments from the Bench about not focusing on this particular case... Whatever the legal issues, it seems patently clear that the justices were avoiding the violence, fever swamps and lies that now the majority of the registered Republicans in this country believe. How these well-educated and elite jurists can't see that they are seriously harming the country and the Constitution is beyond me.
I also keep having nagging thoughts about judges in more authoritarian times in other countries who found themselves on the wrong side of their dear leaders after giving those leaders all of the power to do whatever they wanted, and when courts tried to push back even a little bit, those same judges ended up tossed to the wolves. I wondered if they were simply trying to avoid more harassment, or bending to the authoritarian before being asked. Timothy Snyder says that is one of the biggest mistakes that those in power can make, and not only do we see it with the press, the GOP en masse etc, but also with the Court. They keep grabbing more power for themselves and I don't know how they think that this will end well.
The Preamble's Posterity clause prohibits making any "permanent" law, ruling, order, etc. It operates in two ways. 1: Posterity is also "we, the people," with the same right to self-governance the Framing generation had; in the context of ratified text this means every officer has the same power in every generation. Nobody can add anything "forever" by any means but Article V amendment. And 2: No matter how many times text is violated by statute or ruling, it always controls. History is meaningless here. If 100% of US law violates the Constitution, 0% of US law may be enforced.
Thank you for the explanation. I have some questions about how this works in practice, but I will try to figure them out without highjacking this thread. I love learning more about all of this. I wish I had gone to law school...
To characterize Robert's view of how the public perceives the court as "superficial" is generous. He absolutely refuses to consider an enforceable ethics code and wont even deign to appear before the Senate Committee to say why that is so. Yet, when days after the upside down flag story broke, he takes the unprecedented step of taking the decision away from Alito. This of course completely invalidates Alito's snooty response to Durkin purporting to show that he is above reproach for remaining on these Election Cases . But , Robert's only took that step because of the realization that an opinion by Alito overturning any of the January 6 convictions would be met with open public derision and that would have made it impossible for Roberts to provide any relief to Trump and the perpetrators of the January 6 insurrection. Ironically, Robert's re-assignment failed because it gave Brown-Jackson the leverage to change her position and force the cases to be returned to the trial courts which ARE objective and unbiased.
I was a bit surprised that the Times article found it uncertain whether a president could be prosecuted for bribery. That was the whole point of Justice Barrett' concurrence raising her objections to the evidentiary limitations invented by the majority. The Times found ambiguous the majority's fn 3 (the Times did not reference the footnote number). I found it unquestionably clear in the affirmative, and a clear response to Justice Barrett. Tom Crane
Thanks for the analysis.
You're welcome!
This doesn't mean that no other factor in that equation can invalidate a claim to the office, of course. For instance, Steve mentioned a submitted elector's vote can be disqualified if that elector was not properly appointed by state election (Art II §1 as amended by Amdt XIV §2 & Amdt XXIV). In 2024 Congress can invalidate Harris' electors but frankly, the electoral process has been dragged so far from text it could apply to any elector in any year.
Reform NOW.
Agree!
Roberts finally ousted the ghost of Scalia and claimed the court as the Roberts Court. May he rot in hell.
I disagree with the details of this comment, though not its overall spirit. I would say that Roberts has determined that the best way to avoid becoming a minor member of the Alito Court is to make sure that the Roberts Court does everything that the Alito Court could possibly want it to.
You have a keen sense of the surrealism of today's Court!
Outstanding piece, offering outstanding service to those who care.
There is an interesting sidebar to this issue. The Wal Street Journal today ran an Op Ed on the New York Times Article that is the foundation of Professor Vladek's analysis. You will be shocked---positively shocked--- to learn that the Editorial Board of the WSJ complains that the "slant" of the Times piece distorts the ethical and analytic purity of the way in which the Court is behaving. This is the same Board that let Alito write an Op Ed falsely claiming that Congress has no jurisdiction over the Court. And its view of the information leaking from the Court is "unslanted" Really?
What disturbs me most is that, obviously naively, I had held to the hope that Chief Justice Roberts was trying to do the right thing (as he sees it) and keep to some version of “calling balls and strikes.” (Although that is an inaccurate analogy for what a judge, particularly a Supreme Court Justice, does, as then Senator Biden and Senator Kohl pointed out in Roberts’ confirmation hearings.)
Instead, the conclusion I draw from the NYT reporting is the Chief Justice reacted to “losing control of the court” in the worst possible way — by changing his own judicial philosophy and adopting a much more aggressive conservative position regardless of the consequences. It might be he is trying to be the judicial equivalent of those who justified their service in the first Trump administration by saying they were trying to prevent worse outcomes. In my view, those who made that argument would have better served the country if they had resigned in protest, stating publicly (and loudly) their reasons for doing so. Perhaps that is now true of Chief Justice Roberts as well.