November 10, 2016

"Donald J. Trump’s victory saved the chief justice from irrelevance."

"A President Hillary Clinton... would have nailed in a five-justice progressive majority and left Chief Justice Roberts where no chief justice has been in modern memory: in a minority on his own court."

Writes Linda Greenhouse in the NYT.
The lists of 21 potential Supreme Court nominees that the Trump campaign put out include established and well-respected stars in the conservative judicial firmament.... The chief justice will have a reliable ally....

[Roberts] needs to make it clear that the Roberts court is not a tool of partisan politics....

I hope he understands the election not only as a gift but as a warning, and that he can summon the qualities of leadership to move the court he clearly cherishes to safer ground, for its own institutional well-being and for ours.
I'm just trying to imagine what Linda Greenhouse would have said if President-elect Hillary Clinton were set to nail in that 5-justice progressive majority. Justice Ruth Bader Ginsburg's name would have come up, I think, as the rising leader of that progressive majority. Would Greenhouse have warned her that she'd better take pains to eradicate the impression that the Supreme Court follows partisan politics?

72 comments:

virgil xenophon said...

Linda Greenhouse swims out to meet troopships..

doofus said...

Oh, Ann, you are hilarious. You should quit teaching law and do stand-up.

rcocean said...

"Linda Greenhouse swims out to meet troopships.."

Yeah, enemy troopships. Have you seen her picture?

eric said...

In hindsight, thank God the Republicans didn't cave on Obamas scotus nominee.

hombre said...

No!

YoungHegelian said...

It's "partisan politics" when Republicans do it. It's "seeing reality like it is" when Democrats do it.

But we all know this, including our hostess, who just likes to engage in some cage-rattling every now & then.

Achilles said...

#nevertrumpers counseling the approval of garland look more than silly now.

They look more like traitors actually.

DanTheMan said...

>>Would Greenhouse have warned her that she'd better take pains to eradicate the impression that the Supreme Court follows partisan politics?


In a similar vein, will the sun rise in the west tomorrow?

Widmerpool said...

Ann - Don't be too hard on poor old Linda. She was all set to write column after column about how our new progressive court was a wonderful thing and is in the process of imposing its wise vision on the benighted. Her hopes have been dashed. A pathetic column, but a cry for help. Her friends need to intervene.

Pookie Number 2 said...

I'm pretty sure that Roberts cast a fairly significant non-partisan vote a few years back.

traditionalguy said...

Drats, foiled again! That slippery Roberts got away.

khesanh0802 said...
This comment has been removed by the author.
khesanh0802 said...

Won't Linda be down hearted when she finds that no one in the Trump administration pays any attention to her? That's going to happen to a lot of the liberal punditry. Won't it be fun to watch?

dreams said...

I hope but I'm wary of stealth liberals disguised as conservatives. Also, our history is replete with conservative justices who grew into liberals.

Sebastian said...

"Would Greenhouse have warned her that she'd better take pains to eradicate the impression that the Supreme Court follows partisan politics?" ISWYDT. Appreciate the sly humor.

readering said...

Althouse left out the most interesting part of the Greenhouse column: The written dissent from the Court's 4-4 letting stand a stay in the lower court in a Voting Rights Act case, which (writing a dissent from denial of a stay request) is highly unusual and which Greenhouse takes as a sign that the conservatives are willing to mix law and politics on the Court. Folks who tag Roberts as a secret liberal should note it.

SGT Ted said...

The Democrats are all about using the USSC for partisan politics. Greenhouse can go stuff it.

LYNNDH said...

No F way would she say that if Hillary had won.

AprilApple said...

Greenhouse - another Liberal progressive fascist wagging her finger and lecturing.

mezzrow said...

I'm just trying to imagine what Linda Greenhouse would have said if President-elect Hillary Clinton was set to nail in that 5-justice progressive majority.

In the wastebasket is a wadded up draft (hey, this is literary license here! Just stifle!) that begins, "After waiting out an obstructionist Republican congress for many long months, an unprecedented opportunity awaits..."

mccullough said...

Ginsburg is too old to be the progressive Scalia. The big fight will not be the Scalia seat but the Ginsburg or Breyer seat if it becomes vacant while the President and Senate are Republican.

The Dems would be foolish to filibuster the nominee for Scalia's seat. Too many Dem senators up for re-election in 2 years in Trump states and why go to the mattresses over Scalia's seat? Save it for a liberal seat that becomes vacant.

n.n said...

Greenhouse is either a whistleblower or a disenfranchised alien from the twilight zone.

Mike said...

To ask the question is to write humor on a par only the 1970s SNL cast reached.

Alex said...

The 2 octogenerarians(Ginsberg, Kennedy) will try to hold on to dear life in the hope that the Dems regain POTUS in 2020.

Qwinn said...

If Democrats were reasonable, they'd accept a conservative in Scalia's seat right off in order to establish a precedent that a liberal should replace the next liberal seat.

Democrats aeen't reasonable. They will fight to claim Scalia's seat at all costs. Republicans should ignore them and put a conservative in every single seat that opens up this term, because we know that's what they would have and will do next time they get a chance.

Gahrie said...

[Roberts] needs to make it clear that the Roberts court is not a tool of partisan politics....

He'd be lying while RBG is still on the court.

Qwinn said...

Actually, strategically speaking, the liberals on the court should bow out before 2018, when Republicans are virtually certain to pick up several Senate seats. I doubt they will though. Which is good.

Bruce Hayden said...

@Alex - J Kennedy, a Reagan nominee, is not really a liberal. For decades he has been a semi-reliable vote on the conservative side. He was a bit wayward in the last couple years, voting with the liberals (and very possibly forcing CJ Roberts to switch sides in my rider to control the writing of the decisions). Next up to octogenarian status is long term liberal Justice Breyer, at 78. Then there is a decade jump to J Thomas. My guess is that it will be liberal Justices Ginsberg and Breyer who hold on for dear life over the next four years (I don't see Ginsberg lasting 8, and maybe not even 4, due to health issues).

Unknown said...

It is certainly true that in 2018 Republicans have a favorable situation in terms of Senate seats with so many Dems up for reelection. But it will also be the 2nd year of Trump's presidency and a great deal will depend on whether the things he does are well-received or not. If he doesn't handle unwinding the ACA carefully, he could face a huge backlash. There'll be no hated Hillary on the ballot to dissuade his opponents.

glenn said...

No.

Alexander Ignatiev said...

I wonder how many votes RBG's political stunts cost Hillary?

Chuck said...

The Greenhouse Effect.

rcocean said...

"J Kennedy, a Reagan nominee, is not really a liberal."

Other than voting to uphold Roe v. Wade, Finding a constitutional right to Gay marriage, and upholding affirmative action, he's been a real conservative.

Like, Grandma O'Connor he has no judicial philosophy except "What will make the NYT like me?"

And can we stop with the "He was a Republican nominee therefore he wasn't a liberal" nonsense? Brennan, Warren, Blackmun, Stevens, and Souter were all nominated by "conservative" Presidents.

Quaestor said...

Would Greenhouse have warned her that she'd better take pains to eradicate the impression that the Supreme Court follows partisan politics?

Of course not. Rules of impartiality are just like the rules of civility and the rule of law generally — they exist to restrain whomever the "progressive" left choses as the enemy du jour. The rules of impartiality are corollaries of the rules of diversity which apply only to skin color and sexual proclivities. Diversity of opinion is not just unwelcome, the holder of said opinion must be destroyed.

Colin Durham said...

Its interesting that the liberal justices vote in lockstep with Democratic priorities and it is the moderate and conservative justices who will swing the vote one way or the other...yet the conservatives are always accused of playing politics....

Oso Negro said...

All of the Democrats will warn that Republicans better do what they want or else. Fuck them. Elections have consequences. I think that a good portion of the majority who elected Trump thirst for consequences. Although, I, for one, am no Trump supporter, I would love to see the Democrats get something to cry about.

Limited blogger said...

no

Big Mike said...

Would Greenhouse have warned her that she'd better take pains to eradicate the impression that the Supreme Court follows partisan politics?

Considering that Ginsburg reacted to Trump's win by donning her "dissent" collar, I'd say it's too late.

chuck said...

No doubt Greenhouse desires a court populated with kangaroos. There's diversity for you.

Ignorance is Bliss said...

Oso Negro said...

I think that a good portion of the majority who elected Trump...

A majority did not elect Trump. He will be President, and he will have every bit as much legal power and authority as if he had won 100% of the popular vote. I hope he uses it wisely. But he did not get a majority.

We are conservatives. Lies do not become us.

Mark said...

Since a Chief Justice votes last, such that he can always vote in such a way that he is in the majority, and has the prerogative of assigning opinions when in the majority, the CJ is never irrelevant.

traditionalguy said...

I believe the States that issue Drivers Licenses to immigrants also let them register to vote by checking a request under Motor Voter laws.

But that is just Old Gringo law and if they can walk across the border, then they assume Obama is asking them to vote.

Krumhorn said...

I always enjoy it when the lefties offer helpful advice to their opponents. The subtext of the advice is setting the conditions for being invited to the next party of the cool kids in Georgetown.

- Krumhorn

Spiros Pappas said...

The Court should be conservative and defer, whenever possible, to the elected branches of government. That's why I'm more comfortable with Republicans appointing judges than Democrats. But enough already with the fag bashing and the Christian mumbo jumbo.

The Vault Dweller said...

Well elections have consequences as Chief Justice Roberts said. I suspect Justice Ginsburg just rediscovered a newfound vim and vigor for her work, and will continue working for at least 4 more years even if she has to be wheeled in on a gurney using a respirator.

JAORE said...

I am horrified to think that President-elect Trump might make sure his nominees support certain issues. Terrible, just terrible. Of course Hillary flatly said she would. But still.....

Kirk Parker said...

Looking at that last paragraph, I can only surmise that there was a 2-for-1 sale on rhetorical questions at the rhetoric store today.

victoria said...

Mark my word, Trump will not seek appoint any one of those 21 "conservative" judges. HE is not a conservative (Which is his only saving grace), and will revert to appointing judges that are more in line with his way of thinking (real way). Garland would have probably been a good choice for him, he is a moderate. if anyone thinks that just because the evangelicals "helped" elect him that he is beholden to them, think again.


Vicki from Pasadena

readering said...

How the Senate Democrats deal with Trump's nominee to replace Scalia will depend on the nominee. If she or he is not batty (Bork) or accused of misconduct (Thomas) or a crime (Ginsberg) or considered an unworthy crony on a bipartisan basis (Miers) things will go smoothly. See Kennedy, Souter, Roberts, Alito. Democrats are not interested in the abolition of the cloture rule.

Ficta said...

@Sebastian I missed it when I first read it. You're right, that's pretty funny. The actual answer to Althouse's question is probably yes.

James Pawlak said...

The Chief Justice is not "to the right". He, too easily, compromises the Constitution as the foundation of our other laws and that in many manners opposed to the intent of the Founders.

Michelle Dulak Thomson said...

This election was a bit of a shocker here -- my husband, for one, has gone into literal mourning, dressing all in black, for two days running. Me, not so bad, and the overwhelming reason is the Supreme Court. I don't know what President Trump will actually do, but I do know what President Clinton (II) would have done. Citizens United would be toast. Heller would be gutted. NFIB v. Sebelius would be severely tweaked at minimum. The VRA case (forgetting the name) would be revisited, and probably mostly overturned. And lots of other cases revisited, on down the line. There are cases that do need revisiting (Kelo is my biggie, now that Pfizer has let the entire "package" handed it by New London turn into a feral cat colony -- not that I have anything against feral cats), but HRC's agenda was clear and, in the case that was (you may remember) specifically about her, spiteful.

I'm not exactly sanguine about all this. Megan McArdle (Megan McArdle!) opined just before the election that Trump is likely going to precipitate WWIII. I think Clinton would much more likely do that, as she's more of a hawk and yet simultaneously in on negotiations (Iran's nuclear deal most of all) that make nuclear war -- as opposed to a US first strike -- more likely. If Israel nukes Iran, or South Korea launches a conventional attack on North Korea, or China decides now would be a good moment to grab back Taiwan, or Pakistan suffers another coup ... well, don't say I didn't warn you. But the small chance of any of these things happening is worth it to me just for that handful of SCOTUS cases that will probably stay as they were.

Michelle Dulak Thomson said...

Ignorance is Bliss,

Let us be super-duper accurate. No candidate got a majority. This is another plurality election, just like the other two involving a Clinton, though Perot was a heftier opponent than Johnson and Stein and McMullin were.

Birkel said...

Fen's Law.

Q.E.D.

Mark said...

Would Greenhouse have warned her that she'd better take pains to eradicate the impression that the Supreme Court follows partisan politics?

File this under "Questions that answer themselves."

Bob said...

Didn't Roberts already throw in with the libs in his Obamacare switcheroo?

"We should start calling this law SCOTUScare," Scalia wrote in the dissent.

tim maguire said...

They'd still be mostly white, Ivy League educated lawyers. Catholics and Jews. What sort of minority would Cheif Justice Roberts be in?

Goldenpause said...

Funny you should mention Ruth Bader Ginsberg. Earlier this year she gave an interview in which she made completely inappropriate statements (which is putting a polite spin on things) and now she has worn her "dissent" collar right after the Presidential election. These are clear signs of cognitive impairment and a lack of judicial temperament. Put this together with her reported dozing during oral arguments and you have substantial evidence that she may no longer be mentally competent to carry out the duties of her office. How long is this going to go on before there is pressure for her to resign, regardless of who holds the office of President? My guess is that she will hang on as long as she can fog a mirror.

BN said...

First thing we do is kill all the judges.

BN said...

How come I hate the Supreme Court? They should be the ones I respect the most.

They don't believe in the law. They believe in their own judgement. Cause they're "judges."

I guess that's it.

BN said...

"Tax" is a 3-letter word. Did Congress not know how to spell it when they wrote Obamacare?

BN said...

Wait. Did I just ask if Congress doesn't know how to spell "tax"?!?!?

Jeff Weimer said...

No, Next Question?

Scott said...

Before I say this, I want to stress that I am *NOT* suggesting it as a course of action.

One must wonder if somebody would consider 'helping' RBG or Breyer to depart the court in the next few years, whether they like the idea or not. There are a lot of unbalanced individuals out there, and it only takes one getting lucky...

PackerBronco said...

I can't wait for Trump's first comments on Supreme Court decisions that go against him. Comedy gold is a-waiting.

Clark said...

This post is utterly Althousian. Everything I love about this site.

Scott Anderson said...

Linda:

We won. You lost. Get over it. We have the pen and the phone. And the DoJ. And the IRS. and the FBI. As your president taught us, it's time to punish your enemies. That's the New America you made. Live with it. You are in so much trouble.

Saint Croix said...

This development found the court at a moment of unusual vulnerability: for the first time in memory, all the liberal justices now sitting were appointed by Democratic presidents and all the conservatives by Republicans. This is not the historic pattern.

She fails to mention the cause of all this hostility and anger and mistrust: Roe v. Wade!

Why did Reagan nominate Republican and Republican and Republican? Roe v. Wade. Why the hell was Ronald Reagan in the White House? Roe v. Wade. It's why he nominated O'Connor, and Scalia, and Bork. And then the Democrats freaked and borked Robert Bork. Why is "bork" a verb? Roe v. Wade! And then Clarence Thomas and the high-tech lynching. You're a sexual beast!

Right-wing anger and liberal hysteria is all about Roe v. Wade. There are lots of judicial opinions that piss people off. But the judicial opinion that inspires hundreds of thousands of marchers, and doctors murdered in church, and other doctors sentenced to prison for murdering newborns? That opinion is known as Roe v. Wade.

I mean, why the hell have all the Protestants disappeared from the Supreme Court, to be replaced by Catholics and Jews? The religion is a proxy for how you suspect the nominee will vote.

And now we have a president who has promised to put a pro-lifer on the Supreme Court. Our first pro-lifer! I am so glad that Mr. Trump has made this promise. I only hope he will keep it. And if the NYT does not like this partisan attempt to stack the Supreme Court with pro-lifers, well, start respecting the sanctity of human life. You want Republicans to worry about the death penalty, or the relatives of terrorists, while you are secretly stabbing babies in the neck? Physician, heal thyself!

Scientific Socialist said...

IF Trump read Greenhouse's column, I'm sure that he said to himself "Gee, maybe Linda's right. Even though my election represented a complete repudiation of "progressive", statist political government, I better not send the same
message with my SCOTUS nominations."

Jack Sherman said...

[Roberts] needs to make it clear that the Roberts court is not a tool of partisan politics....

Why so writers at the NYT will like him? Fat chance - they just don't get it

damikesc said...

[Roberts] needs to make it clear that the Roberts court is not a tool of partisan politics....

I remember predicting that caving into hacks like Greenhouse in regards to Obamacare would just lead to them playing that game more and more often.

There'll be no hated Hillary on the ballot to dissuade his opponents.

True. But the Dems seem anxious to go even further Left and I doubt that will work out well for them in the states Trump won.

Thomas Hazlewood said...

"[Roberts] needs to make it clear that the Roberts court is not a tool of partisan politics...." (anymore)