Tomasky writes: "Count this if you must as my attempt to 'intimidate' John Roberts, but I was reading back through his statements about stare decisis at his hearings. What a liar."
Chief Justice John Roberts. (photo: Getty Images)
John Roberts Is Just a Liar
19 June 12
ount this if you must as my attempt to "intimidate" John Roberts, but I was reading back through his statements about stare decisis at his hearings. What a liar.
Geoffrey Stone of the University of Chicago Law School is one of our leading legal scholars, so let me hand it over to him here for a few grafs, from a piece he wrote for HuffPo that's five years old but rings awfully true as we count down the days until the Supreme Court seems likely to hand down its most striking overturning of a law since the 1935 National Recovery Act decision. Take it away Geoff:
John Roberts assured the Senate Judiciary Committee that judges must "be bound down by rules and precedents." Invoking Alexander Hamilton and James Madison, he affirmed that "the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability," and "integrity in the judicial process." Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly "unworkable" over time. But in general, "a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."
Similarly, Samuel Alito testified to the Senate that the doctrine of stare decisis is "a fundamental part of our legal system." This principle, he explained, "limits the power of the judiciary" and "reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions." Stare decisis, he added, it is "not an inexorable command," but there must be a strong "presumption that courts are going to follow prior precedents."
It is hardly surprising that Roberts and Alito would pay such obeisance to the doctrine of stare decisis in order to get themselves confirmed. Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.
Now, they of course left themselves wiggle room in that "inexorable command" part. And I know conservatives are already thinking, well, Tomasky, were you such a fan of precedent when the question was civil rights or abortion? It's a fair question, but there are differences. One is that those big Supreme Court decisions of the Warren era weren't about legislation. I can't think of a case when the Warren Court overturned a prominent federal law, clearly preventing the will of Congress (and therefore, in our governmental theory, of the people) from being implemented, especially a law just two years old.
And when the Warren court did reverse past court precedent, it often did so with large and carefully constructed majorities. This is a very important point. Brown v. Board, for example, which overturned a previous court ruling of 58 years prior, was 9-0. Repeat. 9-0. (Even Roe v. Wade, which did not involve stare decisis, was a 7-2 vote.) That's a far cry from an ideological split 5-4 decision, which I suspect we're going to have, on a law just two years old.
Roberts - and Alito - simply lied. Balls and strikes. Right. They are politicians in robes, nothing more.
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I and possibly others are a bit behind. Could you tell us what law you are talking about?
Obviously, if one believes that the justices of the Supreme Court deliberate carefully, consider well-briefed arguments, and have exceptional support from very smart clerks, and indeed, input from amicus briefs, then it should be difficult to overturn a prior decision.
But stare decisis does not rescue unconstitutiona l legislation, no matter how large the majority voting for it.
Also, you assume that the court is going to declare the health care unconstitutiona l.
A decent regard for civility would suggest that you not call the Chief Justice a liar based on your speculation as to how he might rule and especially since you are dead wrong on the premise of your article.
The CJ may surprise you because based on his prior rulings, he may well vote to uphold the legislation. I'm not a fan of CJ Roberts because I think he way out on the fringe, but what may concern him is whether Congress by dictating the purchase of insurance is creating commerce where none existed. That's got nothing to do with stare decisis.
Justice Thomas may vote to uphold the bill because of his strict views on how to interpret the constitution. Justice Scalia probably won't.
In particular, if Roberts has the idea that Obamacare "creates commerce", he's totally and willfully wrong. A nation of 330 million people spending about 17% of its GDP on healthcare is COMMERCE, brother. It's commerce with or without insurance. It's commerce with or without a mandate or a tax or a single payer. It's commerce in a capitalist system, in a socialist system and in any other system under the sun.
Healthcare is HUGE commerce and as important as life and death. Congress is authorized to regulate commerce, and if it sees fit to require payment (it also has the right to levy taxes and imposts) from people who participate in healthcare/comm erce (or will surely do so before they die), then Congress can rightfully do so. They already did virtually this same thing 50 years ago when they made people pay premiums (taxes) for Medicare.
Perhaps you only read the title of the article. The author did not call the Chief Justice based on speculation of what he might do. It is based on now mulitiple activist decisions by Roberts and his pals, in direct contradiction of his prior statements. Some might call that a lie, others merely politics. Either is unbecoming a Chief Justice.
And how can you possibly know Thomas' strict views on anything? (Except his propensity for conflict of interest and corruption, of course.) He never speaks in court, never writes opinions, just nods when Scalia nudges him awake.
Not only is this law "only two years old" the part of the law considered most offensive to our saviors in the robes HAS NOT EVEN TAKEN EFFECT YET! It is not yet the law of the land.
Glad to oblige.
Article 3, Section 2;
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,....." In other words, the Supreme Court can declare a law passed by Congress, and signed by the President, unconstitutiona l, and therefore null and void. It is one of the basic reasons for the existence of the Court.
The underlying principle of the three equal branches of government, and the separation of the powers of those branches, is to prevent a dictatorship of any of the one or two. I think they went over this with you in the 8th or 9th grade. Or perhaps you are a victim of recent changes in educational standards in this country.
I hope this little tutorial helped.
"The Supreme Court shall have appelate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as Congress shall make."
The issue of judicial power was fundamental in every aspect of debate during the writing of the constitution. It was never doubted that the SC could not overturn laws passed by the other two branches because it would have the effect of giving it clear supremacy over the Congress and Executive.
The SC seized this power by itself for the first time in 1803 when Marshall claimed that right in the case of Marbury vs. Madison. I am sure you knew that.
Cont.
Nowhere, in my copy of the Constitution, in Art. 2 Sect. 3, or anywhere else in the document, is the legislative branch given the power to "regulate" the Supreme Court, other than to approve/disappr ove appointments and impeach justices. That last is why the court does not have supremacy, clear or otherwise, over the legislative branch, no matter Marbury v. Madison.
"[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever....It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two."
Of course, the SC has done exactly that after Chief Justice Marshall. They have repeatedly not only struck down proper laws but have created out of their own biases entirely new legal doctrines like "corporations are people" or "separate but equal."
These are landmark cases known by every 8th grader, sir.
Jefferson was adamant after Marbury that judges were never intended to be the "ultimate arbiters of all constitutional questions" and that the "constitution has erected no such single tribunal" because it would place us under [the despotism of an oligarchy" [all his words].
Pres. Andrew Jackson's approach was to just ignore the Supremes, especially Marshall.
That is what the SC has become, maybe it is time to correct it.
Hamilton, in the Federalist Papers, wrote: “…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”
While the Constitution doesn’t say that in exact words, we must remember we inherited our judicial system and philosophy from Great Britain and that power was in British courts for centuries. In the Dr. Bonham case of 1610 Sir Edward Coke established that principle with nearly the exact same words, so our colonial courts used that all the time. Nothing in the Constitution says the courts couldn’t continue to use that.
The power to decide all cases arising under the Constitution gives the courts authority over every law (Article III), etc. etc., but nothing says the rest of government must bow to the court. A decision voiding a law doesn’t eliminate the law, it only means the judicial system won’t recognize that law or enforce it.
(to be continued)
This case should not ever receive a decision. The judiciary has long recognized that the plaintiff must suffer some injury from the law before having a “case.” Since this “case” was brought by a gaggle of state attorneys general who have gold-plated health insurance themselves, paid for by state taxpayers, they have no bona fide case. They do not represent individuals, businesses or any other organization, so they do not have a case. No state has been harmed by this law, and no state will ever be damaged by the law, so they have no case. The court needs to say that.
Politicians want to have it both ways, hypocrites can't tell the difference, but Supremes are supposed to know better. Afterall, it's their job.
Agreed! However, this statement begs the question: "for whom is Citizens United 'working'"? It's certainly NOT working for the better good of the We There People! THerefore, unless the "5" on our 5-4 court has some other ---as yet publicly unstated--- agenda, this abominable decision muster soon be bound for the trash heap.
Let's all hold our collective breaths in anticipation.
Time for them to go.
"The Supreme Court that money bought."
The Federalist Society is a right wing and neo-confederate group of lawyers and judges. They appear to be "original intenters" but really they are states righters in the old Confederate sense.
As such, they are indeed, just politicians in robes. And they are part of the turning of the US toward the extreme right wing.
Citizens United should have been Dred Scott, producing a massive response to blatant protection of slavery, not rule of law.
Americans KNOW corporations are not we the people. Americans WANT Wall St. held accountable. Dems=sold out COWARDS. They manipulate their supporters JUST LIKE FAUX, Rush, Beck. Send $$ to Liz, NOT Barry, NOT DNC, etc. Warren in 2016, amigos.
This is not Thomas's first indiscretion in this manner. Why would this not be worthy of impeachment proceedings?
If we remember the Pledge of Allegiance case just a couple of years ago, this court said the man bringing the suit didn't have a case because he didn't have primary custody of his daughter after his divorce. No damage, no case, therefor no decision in his favor. Rather than rule on the merits of the argument, the judges just threw out the case.
Now we have some state attorneys general bringing a case before the court. Not one of those state officials has suffered any damage; they all have gold-plated health insurance themselves; curtesy of taxpayers. They do not represent individuals or businesses. They only can represent their respective states and no state has as yet suffered any damage from the health-care law. Nor is any state likely to.
The second case is the challenge to California's repeal of the anti-gay-marria ge law. It is obvious that those who are trying to reintroduce the anti-marriage law for gays have not suffered one iota of harm to themselves and will never suffer any form of damage if gays marry.
It will be interesting to see if this court abides by this near century-old standard and tosses both cases because no damage has befallen the plaintiffs. Odds are this court will ignore its own rules and do so for political purposes.
I did not say that health care and health insurance are not interstate commerce. Clearly they are - one has to simply look at the medical supplies, equipment, fittings in hospitals, clinics and medical offices, and pharmaceuticals that are the feedstock of the system.
In my view, the issue of insurance is simply one of how a person using the health care system pays for it. Clearly Congress could regulate modalities of payment, scope of insurance policies, prices and so forth. Buying insurance is just a means of paying in advance in case of use. Therefore, the "creating commerce" argument IMHO does not hold water. I mentioned it because it was raised during arguments by Justice Kennedy.
This is why there is a good chance that Roberts, CJ and Thomas, J will vote to uphold the law. Roberts also runs the risk of politicizing the court even more - already 37% have no confidence in the court. This is disturbing and ominous.
The doctrine that Marbury v. Madison created is now as much a fabric of American constitutional law as the words of the Constitution. Get over it. When that doctrine was used to overturn laws that allowed discrimination and restrictive covenants, no one on this board would have complained.
If ten concerned citizens on this board want to beat the drum about whether the Supreme Court should have the right to overturn Congressional laws and choose to spend $100 million airing their views, shouldn't they be able to do so? What if they create an association or corporation to be the vehicle that propagates those views? What's the problem with that?
A greater problem for me is that especially with public companies, those in charge get to define the message to the exclusion of the views of shareholders who may disagree. So, if 51% of the stockholders want to support a right wing yahoo, they effectively make the 49% of others (let's say liberals and those of other non-right-wing suasion) pay for and subsidize their views. This is inherently unfair.
I'm not sure if the term "strict constructionist " was aimed at me but AndreM5's message almost certainly was.
I did not refer to myself as a "strict constructionist " and I am not. You guys seem to have problems with comprehension.
I said Thomas has "strict views" on how the Constitution should be interpreted. That is different from what is known as a "strict constructionist " which is more what Scalia is.
For what it's worth, I don't think, as I've said in another post, think that the Supreme Court should overturn the AHCA. I think it is well within Congressional power.
My comment was aimed at three points: i. that Tomasky has no clue what stare decisis means; ii. he is speculating as to what the decision will be and the motives of those who may vote in a particular way, and iii. it is unfair to call the Chief Justice a liar based on what Tomasky writes.
I do think that Roberts is a very dangerous CJ because I think he has extreme right wing views and is also very smart and capable of using those views to shape policy.
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