Roberts Rules of Disorder
Chief Justice John Roberts said he isn’t bothered “at all” by the criticism of the Supreme Court — which is good, because there’s plenty of it. Heading into the 2015-16 term, public disapproval of the Court had never been higher. And with a stack of social issues before the bench this spring, last year’s numbers may look good come June. Religious liberty, ObamaCare mandates, and abortion regulations are awaiting their turn before nine justices who haven’t been winning popularity contests for their impartiality these days.
Chief Justice Roberts, whose double betrayal on ObamaCare has made him few friends among American constitutionalists, tried to tamp down the criticism of his Court during Law Day at New England Law-Boston. In a Q&A with the school’s dean, Roberts insisted that the ideological divides in Congress are what’s coloring people’s perceptions of the Court — instead of the real problem: the justices’ themselves. The gulf between Americans and the Court isn’t Congress’s fault — it’s the fault of the unelected men and women in his courtroom who’ve taken it upon themselves to rewrite the Constitution.
“It’s usually discussed as, ‘Oh, you’re in favor of this, or you’re in favor of that,'” Roberts pushed back. “In fact, our ruling is that whoever does get to decide this or that is allowed to do it, and that’s not unconstitutional, that it’s consistent with the law. But we often have no policy views on the matter at all, and that’s an important distinction.” What do you call Elena Kagan’s, Sonya Sotomayor’s, and Ruth Bader Ginsberg‘s actions officiating same-sex marriages if not “policy views?” And Kagan’s involvement in ObamaCare was hardly the stuff of objectivity when she not only defended the law as solicitor general but celebrated its passage as “amazing.”
Still, Roberts blames the process — not his people — for the country’s frustration. Party-line votes have determined the fate of the last four justices, suggesting to Roberts “that the process is being used for something other than ensuring the qualifications of the nominees.” If anything is being used contrary to its purpose, it’s the Court itself, which insists on inserting itself into policy issues where it has no business being. The American people don’t need law degrees to understand the limited role the Constitution gives the Court.
And while Roberts blames his controversial opinions on a desire to shrink the judiciary’s influence, his tenure has had the exact opposite effect. If the justices are wondering who’s to blame for the country’s disdain, look in the mirror. The majority of this Court has taken it upon themselves — not to interpret laws, but write them. Don’t be fooled by this political sleight of hand. Regardless of what Roberts says, ideology has always played a part in the Courts’ configuration — especially as constitutionalism becomes less of a universal value and more of a conservative one.
This is nothing more than Washington elites trying to downplay the issue of the Court in an election year where it has never been more important. Roberts, who at 61 is the second youngest, presides over the oldest justices in American history. That means the next president will nominate two — if not three — Supreme Court replacements and dozens of lower court judges. Considering what the courts have done in trampling the political expression and self-determination of the American people, the issue judiciary should be front and center in 2016. It may very well be the last opportunity to break the destructive grip of this oligarchy on America.
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