As the confirmation process for Judge Amy Coney Barrett approaches a likely successful conclusion on Monday, the recent non-decision – a 4-4 split – by the U.S. Supreme Court about mail-in ballots in Pennsylvania provides a chilling reminder of both the importance of the new justice to an enduring constitutional majority on the high court and the infuriating descent of Chief Justice John Roberts.
For at least the third time in recent memory, Roberts joined with the liberals on the court to deliver a head-shaking judgment of real or potential far-reaching consequence. This time, he was on board with refusing an emergency stay and thus allowing to stand, without comment, a decision by the Pennsylvania Supreme Court permitting mail-in ballots to be counted for three days following Election Day, November 3. This, in apparent defiance of both the plain language of state law and Article 2 of the U.S. Constitution, which states, “The Congress may determine the Time of chusing (sic) the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” So is it constitutional for a vote to count when it arrives 72 hours beyond the “day (that) shall be the same” across the land?
Democrats have openly celebrated the decision, almost as if they are admitting publicly to Republicans’ worst nightmare: that they can somehow muster the votes to win that crucial battleground state if given enough time to find them.
This comes after another explosive case in July, when the Chief Justice joined the progressive wing of the court in refusing a request by a Nevada church for permission to hold services on the same terms as casinos during the COVID-19 pandemic. Again, no explanation was supplied.
Certainly, the job of any member of the independent judiciary is to decide how to vote on cases as they see fit, free from explicit political pressure, but the deepest concern about Roberts’ growing coalition with the left is the lack of an explanation behind his betrayal of the principles which led President George W. Bush to appoint him in the first place.
For years, conservatives have attacked judicial activism as a vehicle for the left to sneak through policies that could not attract enough popular support to pass into law through the prescribed constitutional process. But it was the Chief Justice who committed the ultimate act of such activism, effectively re-writing legislation from the bench in 2015 by re-classifying the Obamacare mandate as a tax and, together with the court’s progressives, saving a widely unpopular law from the ash heap of history. The remarkable truth is that the four genuine constitutionalists on the high court had gone beyond ruling that the mandate was unconstitutional, opining that the entire law failed to meet constitutional muster. So love the Affordable Care Act or hate it, you have John Roberts to thank for its continued existence.
And that brings us to the issue of judicial deference – some call it bowing – to the administrative state and the political status quo. Since his Obamacare ruling, which all but severed his connection to constitutionalists everywhere, Roberts has been accused of caring only about the “reputation” of the court – at the expense of sound, constitutional decisions. If true – and we have good reason to accept the logic – the Chief Justice has taken upon himself the role of sole arbiter of how the court should be perceived by the American people.
Is John Roberts an image consultant, or a Supreme Court justice? Liberty Nation Legal Affairs Editor Scott D. Cosenza says more the former than the latter:
“Roberts seems to be an institutionalist above all else and acts to see the benefit of the Supreme Court as an institution. Within certain parameters, this is consistent with the Founder’s vision of ordered liberty, but it can be taken too far. Roberts seems to get into the most trouble with conservatives and conservative legal principles when he places that institutional concern above the Court’s role to say what the Constitution permits.”
Equally troubling is what increasingly appears to be Roberts’ personal animus against President Trump. Public statements by a Chief Justice are rare, so consider his extraordinary and laughable retort to one of the president’s countless unfiltered musings in June of 2019. After an irate Trump had referred to a judge who delivered an unfavorable ruling about migrants seeking asylum as an “Obama judge,” Roberts replied, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Is there anyone who really believes there is no difference between the political and constitutional beliefs of an Obama judge and a Trump judge? Really?
What Trump said, and Roberts implausibly denied, is obvious: On matters of greatest import, federal judges will rule predictably. But less so if they were appointed by a Republican president. Imagine how different the law of the land – regarding everything from institutional power to First Amendment issues to abortion – would be if Earl Warren (Chief Justice of arguably the most liberal court in American history), John Paul Stevens, David Souter, Harry Blackmun (author of Roe v. Wade) on top of the current Chief Justice and, to some degree, Anthony Kennedy – each appointed by different Republican presidents from Eisenhower to Bush 43 – had actually turned out to be the conservatives they were cracked up to be when nominated. In striking contrast, there are precious few if any decisions which demonstrate a similar willingness of liberal/progressive judges to depart from the outcome-based positions they were counted on to take.
Once the newest Supreme Court justice is confirmed, the enduring issue of John Roberts’ decline into judicial Jell-O will likely become less vexing. But given the predominant focus of the chief justice on presenting the image of a non-political court to the nation, few would be surprised if we get less 6-3 rulings than we expect, and more 5-4 decisions with the Chief Justice joining the left and continuing his growing affinity for the very people he was nominated to oppose.
Read more from Tim Donner.
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