In the case of Trump v. Roberts, Trump is right

John Roberts, the Chief Justice of the U.S. Supreme Court, has been serving for 13 years, and is a judicial conservative nominated to be Chief Justice by George W. Bush. This week Roberts pushed back against a comment that President Trump made; the story is reported in the New York Times article below (click on screenshot):

The story can be told briefly. Roberts is not prone to making public statements, but made one when Trump suggested that federal courts are politicized. From the Times:

Chief Justice John G. Roberts Jr. defended the independence and integrity of the federal judiciary on Wednesday, rebuking President Trump for calling a judge who had ruled against his administration’s asylum policy “an Obama judge.” [JAC: this was not a Supreme Court judge.]

The chief justice said that was a profound misunderstanding of the judicial role.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

. . . Later in the day Mr. Trump responded to the chief justice’s statementon Twitter. “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’” Mr. Trump wrote, “and they have a much different point of view than the people who are charged with the safety of our country.”

Leaving aside the slur that Obama judges aren’t charged with the safety of America, which is bogus, Trump’s claim has some merit. Roberts’ assertion that the court is not politicized, and that the justices’ views have nothing to do with who appointed them, was meant to defend the courts’ integrity. But it’s wrong. Supreme Court judges vote pretty reliably in concordance with their ideological biases.

It’s a palpable fact that the Court is highly politicized, and generally votes predictably—along the lines of the Justices’ judicial ideologies and philosophies. And it is no coincidence that those philosophies align with those of the Presidents who appointed them. What President would appoint a justice who wasn’t on the Prez’s end of the political spectrum?

Here are the present nine justices with a indication of whether they are generally conservative or liberal in their rulings, as well as a note about who appointed them:

John Roberts. Votes conservative, appointed by George W. Bush

Clarence Thomas. Votes conservative, appointed by George H. W. Bush

Ruth Bader Ginsburg. Votes liberal, appointed by  Bill Clinton

Stephen Breyer. Votes liberal, appointed by Bill Clinton

Samuel Alito. Votes conservative, appointed by George W. Bush

Sonia Sotomayor. Votes liberal, appointed by Barack Obama

Elena Kagan. Votes liberal, appointed by Barack Obama

Neil Gorsuch. Has voted conservative (also as a circuit court judge), appointed by Donald Trump

Brett Kavanaugh. No record yet but will, based on his record, certainly vote conservative, appointed by Donald Trump.

Yes, the court is surely politicized, and yes, there are “Obama judges” who vote liberal versus “Trump judges” and “George Bush” judges who vote conservative. This is the case and has nearly always been the case, and Roberts is wrong to pretend it isn’t true.

Nowhere is this politicization clearer than in the case of Bush v. Gore in 2000, when the very Presidency was decided strictly along Left-Right lines. Further, every lawyer I know who argues First-Amendment issues in federal circuit courts knows that those courts, one step below the Supreme Court, are also politicized. Many times progressive lawyers, for instance, try to bring cases before circuit courts known to have a more liberal bent.

We may be amused or even heartened by this contretemps between two conservatives, and even take Roberts’ side in the dispute, but Trump happens to be more correct than Roberts.

Look at it this way, flailing about randomly, Trump is occasionally going to be right. As the saying goes, “Even a blind pig can find an acorn.”



  1. mikeyc
    Posted November 22, 2018 at 9:17 am | Permalink

    Agreed. We Americans like to lay claim to patently absurd and false ideas about who we are- things like “a melting pot”, “Land of the Free” and “an independent Judiciary”.

    Roberts is just jawing one of the many fictions we like to comfort ourselves with as it all crumbles around us.

    • Posted November 22, 2018 at 1:06 pm | Permalink

      However, I think these fictions are also guiding lights for citizens, to formulate ideas about what the country should look like. Citizens act based on such ideas, so we need the fictions.

      • Diane G
        Posted November 23, 2018 at 2:03 am | Permalink

        Rather than fictions, I’d prefer to think of them as goals to aspire to. Certainly there have been SCOTUS judges who rose to the position and let down their appointers who’d hoped for more partisan rulings.

        • Posted November 23, 2018 at 2:23 pm | Permalink

          +0.9 : taking 0.1 away because having ideals and leaning toward one partisan side can be significantly correlated. Especially at the Supreme Court level.

          • Diane G
            Posted November 24, 2018 at 3:26 am | Permalink

            🙂 Indeed.

  2. Randall Schenck
    Posted November 22, 2018 at 9:25 am | Permalink

    True but still very disturbing condition for all of us. When our morality and concern for proper justice goes under the bus, what is left? We as a people get only what we demand so don’t blame it on the judges or the politicians who put them in place. We are pretty sure that Trump has no respect for the law in any form except what is good for him. He wants total control over the justice system in this country and is attempting to get it. So, do the people just throw up their hands and say, oh well, that is what we have become. The truth is, we will get out of our justices and courts what we allow. Right now Trump and the republican party are in the process of destroying the rule of law. Maybe Roberts is having second thoughts.

  3. Alexander
    Posted November 22, 2018 at 9:28 am | Permalink

    I don’t believe you have a real separation of powers if the president (who in a two-party system is partisan) nominates supreme court judges.

  4. Blue
    Posted November 22, 2018 at 9:33 am | Permalink

    in re “This is the case and has nearly
    always been the case, and Roberts is wrong
    to pretend it isn’t true,” I could not agree
    more. Ideologically politicized.

    And sexist. For decades and for centuries.
    And for judiciaries Worldwide as well.

    Correct call.


  5. John S
    Posted November 22, 2018 at 9:34 am | Permalink

    Well, from time to time (if we are lucky) the Senate steps in and at least lessens the partisanship by non-consent of the more extreme candidates, e.g. Bork.

    It ain’t all that reliable, however.

  6. JonLynnHarvey
    Posted November 22, 2018 at 9:37 am | Permalink

    There used to be Anthony Kennedy who often was considered a “swing” vote, although he disliked that term. Pro-gay and anti-Guantanomo, but also struck down bans on handguns and in favor of Citizen United.


    I used to use the saying “A clock which is stopped is correct twice a day” until I realized that a clock running backwards is correct four times a day, and you still have no idea when that stopped clock is correct.

    • RPGNo1
      Posted November 22, 2018 at 9:56 am | Permalink

      “As the saying goes, “Even a blind pig can find an acorn.””

      Well said. The German proverb reads “Auch ein blindes Huhn findet mal ein Korn”, which translates as “Even a blind chicken can find a grain of corn”.

  7. Chuck Schuler
    Posted November 22, 2018 at 9:50 am | Permalink

    I agree that in general its true that assignments will align with the assignee president. older assignments had to pass 60% so they would have been automatically closer to center. latest 2 assignments much more party aligned. There is effectively a split out populist party from the GOP, now in action, not sure all conservatives want to be associated to that party and still hold ideals of a liberal democracy. So I get why he wanted to distance himself from dis-n-us donnie, trying to give US hope that our checks n balances will still be able to contain this stain.

    • Randall Schenck
      Posted November 22, 2018 at 10:01 am | Permalink

      I believe anyone can see what we have, that part is easy. But in this recent example of Roberts pushing back, this is new. I think he did it because this president is attacking the legal system on a very personal level. He is naming names, he is getting people fired from the FBI and justice department. In a nut shell he is taking over. So the partisan divide is only the surface problem. What Roberts sees Trump doing is much worse.

      • tomh
        Posted November 22, 2018 at 10:27 am | Permalink

        Exactly right. Trump wants to override laws passed by Congress. The law in question says, any alien who arrives in the US, irrespective of status, may apply for asylum — “whether or not at a designated port of arrival.” Trump’s order was the direct opposite to this crystal clear law. Yet he’s outraged that he can’t rewrite the law. It didn’t take an “Obama” judge to see this.

      • Heather Hastie
        Posted November 22, 2018 at 6:49 pm | Permalink

        Yeah. I think Trump arrived at this decision because in his opinion any judge who finds against him is an unfair, biased judge.

        There was the whole thing that a judge whose parents were Mexican couldn’t be relied on to be fair in the Trump “University” case and should recuse himself. (Funny how he thinks Sessions was wrong to recuse himself in a much clearer situation of conflict of interest!)

        Trump is also quoting the 79% turnover rate of the 9th Circuit Appeal Court, as if that’s something outrageous. However, It’s by no means the highest turnover rate and only slightly above average. The whole point of Appeal Courts is so people have a place to go if they think there’s been a miscarriage of justice, and they have to have grounds for that, so there’s likely to be a high turnover rate.

        So yes, Trump is right that the courts are politicized. But, as Randall says, it’s not as if this is new information and he’s making a great revelation. It’s always amazed me that so many insist justice is blind when it clearly isn’t. I can see why the Chief Justice feels the need to stand up for the integrity of the courts with all the unfair anti-judicial comments Trump makes though.

        • rickflick
          Posted November 22, 2018 at 7:17 pm | Permalink

          I think impartial judges may be considered a useful delusion.

        • Posted November 23, 2018 at 10:17 am | Permalink

          I don’t see the Chief Justice saying justice is blind, just that judges make decisions based on the law, not their party affiliation or the will of the party who nominated them. Note that this still means that a conservative judge will make conservative decisions and who gets to nominate judges does matter. He’s simply claiming that they don’t make decisions by asking themselves “What would Trump want?” or “What would the GOP want?”

          • Heather Hastie
            Posted November 25, 2018 at 6:05 pm | Permalink

            I always believed that, but I worry about Kavanaugh. He think he’s go to the extent of ignoring certain facts to enable him to make the decision Trump would want. He’s only one justice, but with a 4-4 ideological split, that could make a difference.

            • Posted November 26, 2018 at 9:31 am | Permalink

              Let’s hope time and the weight of the robes eliminates Kavanaugh’s anger. After all, he’s on a new team now … for life.

      • Posted November 23, 2018 at 1:30 am | Permalink

        Impartiality of the Court may win out in the end BECAUSE OF TRUMP! Another example of Trump’s stupidity. By attacking the courts impartiality, he has driven Roberts in that direction. Judges, traditionally, were not that brazenly partisan, seems to be changing. But Roberts is going to react to Trump’s aggression and BECOME THE NEW SWING VOTE! Right on, John!

  8. Rasmo Carenna
    Posted November 22, 2018 at 9:57 am | Permalink

    Well, I don’t think Trump is right. He is not complaining that judges are politicized in general as it would be the case if he acknowledged that there are “Trump judges” too. He is complaining specifically about “Obama judges”. What I mean is that he only sees the bias of the other team. I am sure he thinks his own people are perfectly fair and balanced, which is a typical feature of very biased and partisan individuals.

  9. Historian
    Posted November 22, 2018 at 9:59 am | Permalink

    Linda Greenhouse writes often for the NYT on Supreme Court issues. In a column just published today, she agrees on the obvious: the Court is polarized. But, what contributes to this? Greenhouse makes reference to a soon to be published book on the Supreme Court. She writes:
    In a fascinating new book titled “The Company They Keep: How Partisan Divisions Came to the Supreme Court,” to be published early next year, two prominent students of judicial behavior, Neal Devins and Lawrence Baum, explore the Supreme Court’s current polarization through the lens of social psychology. They take issue with the common assumption that the court responds to a broadly defined public opinion. Rather, the authors identify as the “primary influence” on individual justices not the mood or expressed desires of the public at large but rather “the elite world in which the justices live both before and after they join the Supreme Court.” They write, “The justices take cues primarily from the people who are closest to them and whose approval they care most about, and those people are part of political, social and professional elites.”


    In other words, and perhaps not surprisingly, Supreme Court justices, as all people, are influenced in their thinking by the environment that they live in. She notes this about Justice Kennedy: “While in past terms he had joined the court’s four liberal justices in sharply divided cases to supply a 5-to-4 majority anywhere from a quarter to half the time, that happened not a single time during the term that ended with his retirement last summer.” So, he ended his career being no longer a swing vote.

    It would be surprising if lower court justices are not influenced by their environment when making rulings. However, I would like to know if this has been or could be verified empirically. I heard some guests on MSNBC give some examples of where lower court justices ruled against positions supported by the presidents who appointed them. But, anecdotes don’t really prove anything.

    • Davide Spinello
      Posted November 22, 2018 at 11:30 am | Permalink

      The Supreme is better understood a social construct.

      Endorsement of a rather one dimensional analysis, which is quite surprising from someone with Linda Greenhouse’s credentials.

  10. Ken Kukec
    Posted November 22, 2018 at 10:43 am | Permalink

    When push came to shove in 1974, all eight voting justices — including three of his own appointees — voted to make Richard Nixon give up his White House tapes, leading ultimately to his resignation, in US v. Nixon.

    Similarly, in 1997, all nine justices — including two of Bill Clinton’s own appointees — voted against him to make him appear and testify for deposition, on the premise that no man is above the law, in Clinton v. Jones.

    And should push come to shove again now, I’m confident the Supreme Court will make Donald Trump honor a subpoena from the special counsel, likely by a vote of 9-0 again. So, justices (and more generally judges) do not ineluctably vote their politics or their allegiance to the presidents who appoint them. QED.

    Sure, presidents pick judges whose outlooks align with their own. But those judges are — the vast, vast majority of them anyway — American patriots, committed to doing what’s right for their nation as they understand it.

    There is an aspirational aspect to this, of course, but it is an aspirational aspect with which Donald Trump is utterly unfamiliar and incapable of understanding. I’ve long known the man to be an arrant ignoramus in matters of public policy and the functioning of government. For his entire life, he’s never given such matters a moment’s serious thought. Indeed, he lacks the language with which to ponder them. All he knows is the hype-language of product promotion, where everything he likes is “tremendous” and “fantastic” and “great,” and every thing he doesn’t is “horrible” and “terrible” and “weak.”

    But it is only now dawning on me (and, I suspect, many others, including some who have not opposed him before) that Trump has no conception, whatsoever, of America as an ideal, as a nation committed to the creedal concepts set forth in our founding documents. Because he understands nothing of this, he believes everyone is motivated solely as he is — by greed and self-interest alone. That’s why he thinks he can get away with the Jamal Khashoggi scandal simply by flogging the (illusory) hundreds of billions of dollars Saudi Arabia will spend here and the (again, illusory) hundreds of thousands of jobs this money will generate, and by telling his white-nationalist base he’s all about putting them and “America First.”

    Trump is out to undermine the American institutions that can call him to account — the Justice Department, the intelligence community, the media, and, lately, even the military and the Federal Reserve. And, of course, primus inter pares, our federal courts, the primary guarantors that justice will ultimately be done.

    I, for one, was proud as an American that Chief Justice John Roberts — himself a staunch conservative, a George W. Bush appointee, and hardly a hothead — spoke out, taking Trump to task for his outrageous attack on the validity of our system of justice.

    The tide has turned against Trump.

    • Historian
      Posted November 22, 2018 at 10:57 am | Permalink

      Your points are well taken. The important thing is not that judges may have an ideological bent. Rather, it is Trump’s attacks on American institutions. Ultimately, the written words of the Constitution are much less important than that there is a virtual universal consensus on how government should work. This is what it is meant by many pointing out that the basis of why Trump is such a danger to democracy is that he attacks the unwritten norms, which are the glue that holds society together. We had a civil war because one section of the country rejected those norms. The most frightening thing is that about 42% of the voting population cares nothing about these norms and cares nothing about democracy. Without thinking, they succumbed to the charms of a demagogue, who promised to relieve their grievances, greatly exacerbated by a demographically changing country.

      • Randall Schenck
        Posted November 22, 2018 at 12:58 pm | Permalink

        The thing is, that 40 percent or whatever it is, does not mean much any longer. The democrats outvoted them this time by nearly 9 million votes. By the next time, if there is a next time it will be worse. That is bigger than after Watergate. As Trump continues to run down the military leaders and send the soldiers off to the boarder to make himself feel good he will lose more of the 40 percent. And also, those republicans who did nothing for the last 4 years or however long he lasts will go down with him. Trump is owned by Putin and the Saudis and that will be shown with evidence. You will not have to wait much longer. Even Nixon had 25% when he went down and it means nothing.

        • Ken Kukec
          Posted November 22, 2018 at 1:26 pm | Permalink

          “… send the soldiers off to the border to make himself feel good …”

          You taklin’ ’bout Operation “Get Out the Right-Wing Vote”?

          • Randall Schenck
            Posted November 22, 2018 at 2:42 pm | Permalink

            Sure, even some of the right wingers and many of the soldiers are pissed about this one. Spending weeks in the hot desert stringing razor wire. That is kind of like landscaping work. Something you would hire a lot of you know what to do. Refusing to cross the street on the 100th anniversary of WWI to visit Arlington. Can’t go out in the rain to visit an American cemetery in France. Many of the Trump lovers are having problems with this stuff. Then he gets on the phone today and calls people up in the various services to run his mouth while on TV sitting in Florida. Simply a first class jerk.

            • Randall Schenck
              Posted November 22, 2018 at 2:48 pm | Permalink

              Oh yes, and goes after Admiral McRaven, the guy who led the bin laden raid. They loved that one.

            • Ken Kukec
              Posted November 22, 2018 at 4:11 pm | Permalink

              I happened by the tv today while Trump was having his Thanksgiving Day phone call with the troops. He was reading off a prepared script and managed to mispronounce “concertina” wire. He also advised he would be making the sacrifice today of going to visit the Coast Guard base in Palm Beach.

              Since Trump has proclaimed that “avoiding venereal disease” was his personal Vietnam, maybe, if he misses picking up a dose of the clap while meeting with the Coasties today, he’ll count that as the one visit he’s been promising to make to the troops in “a war zone.”

              I’m sure Trump’s phone call today was a helluva morale booster for our guys and gals serving in uniform.

              • Randall Schenck
                Posted November 22, 2018 at 4:30 pm | Permalink

                Yes, I was watching when he came on and started. Had to shut the thing off. It was making me sick. They were covering this on MSNBC and CNN. There is no shame even in mediaville.

    • Posted November 22, 2018 at 11:16 am | Permalink

      Well put.

    • Posted November 23, 2018 at 1:40 am | Permalink

      Trumps brazen partisanship will motivate Roberts to move more to the middle! And Roberts already voted to save Obama Care. Our new swing vote has been found. Thanks, Donald!

      • Posted November 23, 2018 at 1:44 am | Permalink

        Thank you for refreshing my memory on those important rulings were the independence of the court clearly displayed itself.

    • Posted November 23, 2018 at 2:37 pm | Permalink

      it is an aspirational aspect with which Donald Trump is utterly unfamiliar and incapable of understanding.

      Boy did you nail it. What proved the point beyond any doubt was Trump’s criticism of Jeff Sessions for recusing himself from the investigation of Trump’s campaign. Trump simply and utterly doesn’t get the idea of an ethical constraint. Of course he doesn’t get recusal – it’s an ethical concept.

      • Posted November 23, 2018 at 3:05 pm | Permalink

        I do think Trump understands these things but just doesn’t care about them. He is constantly probing each restraint to see what he can get away with. We can see this in how he put his new Acting AG in place but has not used him yet to obstruct the Mueller probe. He is waiting for people to get over their initial outrage and monitoring their reaction. If he gets sued now, he can rightly claim that his AG has done nothing wrong. This is why he waffles between knowing his new AG and not knowing him.

  11. Posted November 22, 2018 at 11:09 am | Permalink

    I have a suggestion for future appointments in the Supreme court which might help matters. Suppose that when a new president is elected that members of both major parties in Congress produce a bipartisan list of candidate Supreme court nominees. This is a list that is agreeable to both parties, and because the more extreme types of judges will be refused by the opposing party the list that is eventually produced will be of candidates that have more moderate ideologies. When the time comes, the president is to choose from that list.

    • Ken Kukec
      Posted November 22, 2018 at 11:30 am | Permalink

      Jeez, that sounds a lot like the “advise” part of “Advice and Consent.” Crazy idea like that could never work. 🙂

      • Nicolaas Stempels
        Posted November 22, 2018 at 4:05 pm | Permalink

        I agree it wouldn’t work, but it is, nevertheless, a good idea. Probably the reason it will not be implemented.

  12. Posted November 22, 2018 at 11:25 am | Permalink

    You have a point but I don’t completely agree.

    Although Trump perhaps doesn’t express it without ambiguity, I am very confident that he is expecting judges to base their judgements solely on what favors the party that nominated them. After all, that’s what Trump would do. Instead, Robert, is saying that judges will apply the law in making their judgement. Of course, their conservative/liberal position will affect their interpretation of the law, as the statistics you present show, but this is not the same as deciding based on their nominating party.

    Here’s a horrible thought: Trump as a Supreme Court Justice!

    • Ken Kukec
      Posted November 22, 2018 at 11:43 am | Permalink

      Trump thinks the federal government operates like the old days of Tammany Hall, where if the city boss appointed a municipal judge, it was like having funds to draw down against in the “favor bank” to have the judge do the boss’s bidding.

      Trump will go ballistic with a sense of betrayal any time Gorsuch or Kavanaugh (or any of his lower-court appointees) votes against him.

      • Posted November 22, 2018 at 11:50 am | Permalink

        Perhaps Roberts’ message was as much to Gorsuch and Kavanaugh (and lower court appointees) as to Trump. Although other presidents nominate judges that they hope will vote with them, they respect the institutions of government enough to not make voting with them part of their selection criteria. One gets the idea with Trump that this is the sole criterion for nomination.

        • Ken Kukec
          Posted November 22, 2018 at 12:22 pm | Permalink

          I think Roberts was reacting as much to grumblings from throughout the federal judiciary as to his own distaste for Trump’s anti-judicial bleatings — especially regarding Trump’s recent threats against the Ninth Circuit Court of Appeals.

          Trump has the delusion he can “break up” the Ninth Circuit as punishment for issuing adverse rulings, the way baseball commissioner Kenesaw Mountain Landis broke up the 1919 “Black Sox” for throwing the World Series.

  13. rickflick
    Posted November 22, 2018 at 3:38 pm | Permalink

    I could go further and defend Trump’s –

    “they have a much different point of view than the people who are charged with the safety of our country.”

    At least indirectly, this comment can be justified from the perspective of his base. Safety concerns are an aspect of a conservative’s psychological makeup. While liberals are stronger in terms of openness to new ideas and are willing to take risk to promote progress. They are concerned for the underclass. Conservatives support protection from the negative impacts of change and security from risks, such as having too many immigrants to properly absorb.

  14. Nicolaas Stempels
    Posted November 22, 2018 at 3:58 pm | Permalink

    Some trivia:
    – Of the 15 SC Justices confirmed since J. William Rehnquist (47, by Mr Nixon in 1971) the average age is 51.5 years.
    – The youngest was J. Clarence Thomas (43), the oldest was J. RBG (60). I note that Mr Garland was 63 when nominated.
    – The Trump (Mc Connell?) nominations are 49 (J. Neil Gorsuch) and 53 (J. Brett Kavanaugh), around the average.
    – Except for J. Clarence Thomas (52-48), the justices confirmed in the latter half of the 20th century all had broad bipartisan support.
    – In the 21st century only J. John Roberts had some significant bipartisan support (78-22).
    – The vote for J. Brett Kavanaugh was the narrowest partisan confirmation ever (since 1971 that is): 50-48
    – However, J. Brett Kavanaugh is fond of beer, he likes beer. Beers for Brett!

    • Ken Kukec
      Posted November 22, 2018 at 4:34 pm | Permalink

      If your counting back to 1971, keep in mind that Reagan’s nominee Robert Bork got “borked” back in 1987, by a vote of 58-42 (with six Republicans voting against). And a pair of Nixon nominees went down in flames by 55-45 votes: Clement Haynsworth and G. Harrold Carswell (who later got busted on a morals rap in a public restroom).

      There’ve also been at least two nominees I recall during that time who never even made it to a vote — Dubya’s pick Harriet Miers and Reagan’s Douglas Ginsburg.

      • Ken Kukec
        Posted November 23, 2018 at 7:55 am | Permalink


      • Nicolaas Stempels
        Posted November 23, 2018 at 12:55 pm | Permalink

        I know, I was just counting the confirmed ones. I did mention Bork and Garland though.
        There have been other ‘circuses’, such as the resignation of J. Abe Fortas (in 1969?).
        More trivia;
        – Mr. Tyler nominated a candidate 9 times, (5 different people), but succeeded only once: J. Samuel Nelson in 1845.
        – There have been 10 nominations that lapsed,only 3 since 1900, Merrick Garland the most recent one.
        The previous one was in 1954, J. John Marshal Harlan II, but he was renominated the following January and confirmed in March 1955.
        The nomination of J. Pierce Butler lapsed in 1922, but was renominated and confirmed that same December

  15. infiniteimprobabilit
    Posted November 22, 2018 at 4:56 pm | Permalink

    Roberts was saying how things should be. tRump would happily make them worse.

    Part of the problem in the disUnited States is the curiously aberrant nature of Federal powers. It seems they notionally derive from the Constipation, which seems to be regarded by its believers in the same way as the Bible and the Koran – infallible, unchangeable and unquestionable. Only ‘interpretations’ are permitted. Which in turn means that curious legalistic distortions or fictions are required of the Supremes in order to make it appear that any decision of theirs is based on the Constitution. (As with this FGM case in Michigan – depending on the ‘Commerce’ clause? FFS!)

    So this flexibility of interpretation means that the politics of the Supremes is dragged into almost every decision they make. They can’t avoid it.

    And as long as you have “States’ rights” as a sort of sacred cow, fuelling suspicion and even hatred of the Feds, I don’t see how you’ll ever change it.

    (Note: IANAL, and I may be wrong about some of the above.)

    • Randall Schenck
      Posted November 22, 2018 at 6:54 pm | Permalink

      Certainly in some ways you are correct. The document in question is stupidly considered sacred cow by many today. But it was not so in the beginning. Father Madison fought to make the states very much secondary to the Fed but lost that one. He also fought like hell for proper representation in the Senate and lost that one. The Constitution was a very compromised piece of work and later Jefferson thought it would need to be redone about every 19 years. So how it became this bible in stone is pure myth and just error.

      Notice also that the Congress was suppose to be the primary governing body but that has gone south considerably and now we have the Supreme’s and the Executive semi dictator. Just look at who got the major portion of the document and who did not. The Congress was it at first, front and center with article one. So the changes have been many and mostly in the wrong directions.

      These large original compromises could have been fixed later but they never were. Neglect has done great damage which now may never be fixed.

      • Posted November 22, 2018 at 9:06 pm | Permalink

        One if their big mistakes was the power they gave to the Supreme Court. Lifetime appointments was a mistake. But a lot if their power has come from congress letting them take it. Once the court claimed the power to declare laws unconstitutional congress never did anything to take that away. It could have been done by amending the constitution or even by removing sitting judges and replacing them. But congress did neither.

        • tomh
          Posted November 22, 2018 at 11:12 pm | Permalink

          So you don’t think the Supreme Court should have the power to decide that a law passed by Congress is unconstitutional?

          • Posted November 23, 2018 at 1:07 am | Permalink

            No, I don’t. Or to put it another way, I think congress should be able to amend the constitution by majority vote.
            Or even further, I would get rid if the senate and only have ghe House of Representatives as our legislative body.

            We have our constitution like it is because the framers were afraid of letting the government be run by majority vote. They thought that was mob rule. So they made the constitution very difficult to amend. I think they were mistaken. I think majority vote is the best way to settle issues and to pass laws.

            • tomh
              Posted November 23, 2018 at 1:17 am | Permalink

              What about state laws-majority rule gives us laws banning interracial marriage and the like. Would you allow a court to declare those laws unconstitutional?

              • Posted November 23, 2018 at 8:15 am | Permalink

                What state rights. Congress could vote to change those laws. State rights are in the constitution.

              • tomh
                Posted November 23, 2018 at 9:49 am | Permalink

                Well, it’s an odd way of looking at things, to say the least. Judicial review has been the basis of the legal system for over 200 years. The idea that Congress could make a law and then decide for itself whether the law complies with the Constitution, is a little too one-sided for most people.

              • Posted November 23, 2018 at 9:58 am | Permalink

                I agree. I am just throwing out the idea. There are a number of countries without written constitutions that do very well. There are also countries whose legislative body can amend the constitution with a majority vote or with a super majority vote, such as a two thirds vote.

            • rickflick
              Posted November 23, 2018 at 6:11 am | Permalink

              You realize that with Republican party control over both congress and the White House, the constitution could have been rewritten to leave Trump in power for life. That may be the mob rule the framers were worried about.

              • Posted November 23, 2018 at 8:11 am | Permalink

                I don’t think anything like that would happen.
                And if it did the next congress could change it back.

              • Posted November 23, 2018 at 10:54 am | Permalink

                Unless they also passed a law making it harder to amend the Constitution. Even Trump is smart enough to figure that out.

              • rickflick
                Posted November 23, 2018 at 8:53 am | Permalink

                “I don’t think anything like that would happen.”
                The framers didn’t agree with your optimism.

                In a worse case scenario, there wouldn’t be a next congress.

            • Posted November 23, 2018 at 10:46 am | Permalink

              In this age of a Trump-controlled Congress (until January) it would be a disaster to allow the Constitution to be amended by Congress.

              • Posted November 23, 2018 at 11:50 am | Permalink

                Your opinion if Republicans continues to amaze me. I just fon’t Think they are that crazy or deluded as you do. I know a lot of them and live in a red state. The two Feirgua senators are conservative but are not on the right wing fringe. Neither are any of our representatives going to vote for a dictator or abolish our rights. Republucusns I know are respectable people.
                Reading your comments makes me wonder if you even know any people who vote republicisn.

  16. KevinP
    Posted November 23, 2018 at 1:23 am | Permalink

    There are some great points above but I don’t think that Trump and Roberts were even talking about the partisanship of the Supreme Court (pace PCC(E)). Their whole interaction grew from the actions of a District Court judge (mischaracterized by Trump as a “circuit judge”).

    All the examples in PCC(E)’s original article relate to SCOTUS justices and not to the judges that Trump and Roberts were arguing about.

    While individual supreme court justices tend to reflect the same biases as the presidents who appointed them, this is much less true of district court judges. I believe Roberts is right, Judge Tigar is not an “Obama Judge”, even though Roberts himself may be a “Bush Justice”.

  17. Posted November 23, 2018 at 12:02 pm | Permalink

    Taken absolutely literally, yes, Trump is correct (if one takes “Obama judge” means appointed by O.). It is also true that the judicial system in the US is highly politicized, particularly at the SC level. However, I have always understood that the President is supposed to sort of “steer the nation”, and so to point this out is awkward, especially as he did not discuss Bush (I or II), Trump and I suppose there may be some Reagan-era ones around in lower courts …

%d bloggers like this: