That headline —
in the NYT — reminds me of the junior high school taunt:
Nobody likes you.
... I can’t think of a chief justice who has been so uniformly vilified by both left and right. The attacks from the left are logical enough. It’s the fire from the right that merits closer observation...
Think about the Affordable Care Act cases, really the only two important decisions by which Chief Justice Roberts has left his erstwhile friends empty-handed. What explains the obsession with these two decisions that would lead people who should be thrilled with his overall performance to want instead to throw him under the bus?...
Greenhouse says Roberts "didn’t get the memo" that judicial conservatism has changed and is no longer grounded in judicial restraint. (This is, by the way, an observation that liberals have been making since at least 1981, when it was the theme of the dean's speech at my law school graduation.)
Remember when “judicial activism” was a nasty label that conservatives hurled at liberals and when “legislating from the bench” was the worst thing a judge could do? Not, it seems, any more. Josh Blackman and Randy Barnett, two law professors who are advising Senator Rand Paul’s presidential campaign (Professor Barnett was an architect of the first Affordable Care Act case), wrote in the conservative Weekly Standard last month that “presidential candidates should reject the vapid labels of ‘restraint’ and ‘legislating from the bench.’ ” Rather, they argued, “The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about ‘strict constructionism’ or ‘calling balls and strikes’ during a confirmation hearing.” In other words, judicial “engagement” is good. Judicial restraint is a dereliction of duty.
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50 comments:
"The Greenhouse Effect"
https://en.wikipedia.org/wiki/Greenhouse_effect_(judicial_drift)
I'm not an advocate for "judicial restraint" or "judicial activism" as what should really matter is whether a case is properly before the Court and is the Court applying the law and Constitution properly. If they're reviewing a law that's unconstitutional, of course they should invalidate it. And vice versa.
Every hack seems to love judicial restraint when they favor the laws being reviewed by the Court, and they seem to love judicial activism when they hate those laws and want them overturned. All the more reason to ignore hacks.
The problem with Roberts' ACA rulings was that his interpretations of the law were absurd twists that as Scalia put it could only be justified if the most important thing was keeping that law in place. The individual mandate was not a constitutional tax, and the "established by the state" language was unambiguous. Roberts was dead wrong on those decisions.
This is, by the way, an observation that liberals have been making since at least 1981, when it was the theme of the dean's speech at my law school graduation.
Is that an observation, or an accusation?
I've generally heard conservatives complain about judicial activism in terms of judges making shit up, not about overturning laws that actually conflict with the Constitution.
Greenhouse gas levels....no oxygen...can't think...must....leave.
Hey, Linda. They're joining your side. YOU think "Judicial restraint is a dereliction of duty."
When it comes to the decisions of the Supreme Court we're living in a post Constitutional era. It's really about power and how it can be used to punish dissension. And since the justices themselves really don't have to live with any negative effects that may result from their own decisions, there is no accountability either. They can just do whatever they want and there's little that can be done about it until they die or step down.
Ignorance is Bliss said...
***
I've generally heard conservatives complain about judicial activism in terms of judges making shit up, not about overturning laws that actually conflict with the Constitution.
I think this sums it up well. And succinctly, Strunk and White would be proud.
She was once a respected SCOTUS reporter.
Standards haven't really fallen that much.
More noxious gas from the Gray Lady; and I'm not talking about the NYT.
So, reversing leftwing judicial activism is judicial activism. This privileges leftwing judicial activist lawmaking by presuming precedence is holy and untouchable, regardless of when it usurps the separation of powers by making law, or otherwise violates the Constitution, rather than interpreting the law via the Constitution.
It's a "heads I win, tails you lose" argument.
The attacks from the left are logical enough.
Are they?
"In other words, judicial “engagement” is good. Judicial restraint is a dereliction of duty."
In other words, as a legal analysis writer she sucks. The big sin committed by Roberts was his overarching concern not to find an act of Congress unconstitutional. When the law as written has to be stretched beyond all reasonable language comprehension as written to mean what Congress itself couldn't understand what it wrote with all of its contradictions is why he merits the opprobrium. As Roberts said elections have consequences and with that struck the Obama-Democrat abortion down with a note stating learn to draft and pass clear unambiguous legislation. So now we have the duck theory of taxation so Congress and every other legislative body in country can pass taxes that aren't labelled taxes and if that is too politically hard for them to do now they can palm that off on regulatory agencies. Next we have the brilliant theory that Congress can't make you buy something but it can tax you for not buying what it couldn't force you buy. Then he finds that notwithstanding black letter law, as plainly written as it can be section of the law, that section has no validity because it doesn't comport to whatever aspirational goal the Congress that passed what was actually written intended. If he doesn't have a friend it's because whores get no respect.
Note the different standard of evidence. The attacks from the left are logical because Roberts is on the other side. They attacks from the right are mysterious because they are based on actual decisions.
At least John Roberts does not have Linda Greenhouse for a friend. That is something.
John Roberts has managed to make himself unpopular with two different wings of the right with his Obamacare rulings. The Rule of Law wing wants the court to invalidate unconstitutional laws. Mr. Roberts went to absurd lengths to find Obamacare constitutional to the point that the Rule of Law itself is brought into question. The "we want to win" wing is upset given that the left-wing judges always seem to support whatever the left wants regardless of merit while the right-wing judges are unreliable. The fact that these were the Obamacare rulings, an unpopular, poorly written, passed through a dubious legislative process, further modified by dubious executive action, massive one party power grab makes it all the worse. If you are going to flub something, flub something no one cares about or no one understands.
I'm not sure it matters anymore. Rule of Law is on life support at best. The Supreme Court in particular and the government in general is looked on with suspicion and contempt by a large percentage of the population and, unfortunately, they have good reason to be so. This won't end well. It is just a matter of who the biggest losers are going to be.
A SCOTUS reporter without a story about the law.
He has no friends because he is a weasel.
Have a feeling that the NSA has something on him to put him under Dear Leader's thumb.
As is often the case, the difference between liberals and conservatives is in how you define the terms. Conservatives consider "judicial restraint" as the courts staying within the bounds of their constitutional role. To liberals, "judicial restraint" means not overthrowing a law enacted by the legislature. Thus, had the Roberts court found Obamacare unconstitutional (as I believe it should have), conservatives would not have seen that as an example of a lack of judicial restraint. The court would have been acting within its constitutional role -- to act as a restraint on the legislature's usurpation of citizens' rights. Liberals would have found the court to have engaged in judicial activism.
Instead of acting within its proper role, the Roberts court, in essence, rewrote the law. To do so, they court had to make several choices that are the proper purview of Congress. This act of "legislation" is outside the bounds set for the courts in the Constitution and is, to conservatives, judicial activism. To liberals, its respect for the wishes of the legislature.
When courts invent rights that are not mentioned in the Constitution, both liberals and conservatives consider it to be judicial activism. The difference is liberals don't care. They just want their preferred policy outcomes and don't care how they're enacted.
Some people don't keep track of who their friends are and who their enemies are. Mostly men.
"The attacks from the left are logical enough"
Just to pile on: it's Prog logic. Mysteriously unmentioned by Aristotle.
If and only if a Justice violates a Prog axiom, he provokes a "logical" attack. The rest is just emotional posturing by conservatives who quaintly believe words have meaning.
It's Alinsky for lawyers: nail the other party to their principles. So you think judges shouldn't make up stuff? Good. We're happy to make up some stuff. Now you stick to our stuff. Wouldn't want to be tagged as "illogical" in the NYT, would you?
In other words, judicial “engagement” is good. Judicial restraint is a dereliction of duty.
Playing to ignorance with petty mocking is good. Treating serious ideas seriously is a dereliction of journalistic principle.
We are the folk song army.
Everyone of us cares.
We all hate poverty, war, and injustice,
Unlike the rest of you squares.
--Tom Lehrer
the left, which has no morality, ethics and is frequent to lie to further its aims, does not care about judicial restraint or judicial activism. Leftist judges view their obligations first to their cause or whatever trendy silly notions of "justice" is catching their fancy that week, and the law is merely one tool in advancing that cause. If the law conflicts with their aims, the law is wrong. If the law advances their aims, it is correct...at least for now. Thus, activism and restraint are just buzzwords used to further advance the cause depending on the context and confuse the public while the real dirty work is done out of view.
Thus, any court ruling overturning laws they like is activism. Rulings that uphold laws they like are restraint. And Vice Versa. Plus, rulings that invent new rights they like (rights = whatever a leftist wants whenever they want it paid for by others) are being on the right side of history. None of this has to do with the rule of law, of course. To the left, the rule of law is just another buzzword, useful only to the extent it aids their activism.
Unfortunately, conservatives have unilaterally disarmed in this fight, preferring jurists who seek to make narrow rulings based on the text or intent of the written words passed by legislatures or even prior rulings, despite how unconstitutional or unconscionable they are. This philosophy limits the ability to further a conservative agenda. In other words, for the conservative jurists, the law as written is paramount. The leftists are only bound by a higher authority - their agenda - which is limited only by the left's imagination, which does not seem to have any limits.
If you're in Washington, DC, and you want a friend, buy a dog.
Sometimes it's a democracy. Sometimes it's a dictatorship. Sometimes it's a cult. It's rarely a "secular" constitutional republic. The power is intoxicating.
He's got his kids. His two, impeccably-dressed but somewhat ill-behaved kids.
The attacks from the left are logical enough. It’s the fire from the right that merits closer observation
I rest my case.
In other words, judicial “engagement” is good. Judicial restraint is a dereliction of duty.
Judicial "restraint" is Justices limiting themselves to their Constitutional job more than anything else, not "being restrained in their language during confirmation hearings".
The response in the quote betrays a fundamental inability to understand the very issue being addressed.
(Contra other commenters, "the attacks from the left are logical enough" means only that they're self-consistent; the Left attacks Roberts for reasons that are logical given the Left's priors.
This is also true of the Right, of course; it's just the author doesn't really understand the Right, failing the Ideological Turing Test.
But calling the Left attacks "logical" is not saying that Pure Logic Supports Their Attacks A Priori.)
"The attacks from the left are logical enough."
A key component of bias is that the author of the bias is unaware of the bias.
Roberts has no friends because he is a spineless coward. He is trying to appease the left so he can go to all the good cocktail parties just like the rest of the "republicans" we send to DC.
Carthage must be destroyed.
The theme of Linda Greenhouse's article seems to be that the US Supreme Court's Chief Justice makes many decisions that are criticized.
From the perspective of the mediaswine at the NYT it is always the right that "merits closer observation."
Closer observation of the left might reveal some undeniable warts. We can't have that.
The decision went against all applicable tenets of statutory construction, and ignored the plain meaning of words. Roberts AND this SCOTUS are frauds. But then there is no law when the executor of the laws is an illegal entity.
Roberts has been a reliable conservative vote on almost every case, except those two big Obamacare cases. It's absurd to claim that he's a closet liberal, or is being blackmailed by Obama, or is influenced by his cocktail party invitations. I think he was wrong on both Obamacare cases, but they were very close calls and his reasoning was defensible. The best way to get rid of Obamacare is to elect a Republican President next year.
Linda Greenhouse is an asshole with a megaphone. She trash talks and, as with all liberals, reinterpret anything logically understood by everyone into whatever twisted way she feels will meet her pussified needs of the moment. The delicious part is how over the years you can catch her changing sides with the liberal flavor of the year. I have 3 favorites but not enough time to beguile you today.
What really matters is the need you feel to give someone so intellectually weightless such a concern. When I see her name I think "how many brainless will be led astray again while America burns"?.
John Roberts will arguably be one of the best Chief Justices of the last 130 years. I say that as one who agrees with him only about 60% of the time. Linda Greenhouse squatting to piss on his shoes won't diminish that. It's just completely predictable.
I refuse to read it because Greenhouse is insufferable (with Toobin a close second).
I don't suppose she said anything about the judicial activism on display in Kennedy's Same Sex Marriage opinion. That was the most indecipherable bullshit I've ever read from the SCOTUS.
I haven't heard Althouse explain how a Constitution that doesn't talk about marriage was found by 4 activist Justices to talk about marriage.
What's the problem here? The Pope is infallible. SCOTUS is always right. If you don't get my meaning, let me rephrase: The Pope is infallible. God is always right. Because Congress doesn't use their Checks & Balances on the Court, SCOTUS is God.
Big Mike said...
If you're in Washington, DC, and you want a friend, buy a dog.
Dog hater.
Well, I guess this post is a way of psychologically comforting conservatives into slowly accepting the obvious truth that there was no constitutional or judicial provision that would have allowed Roberts to strike down the ACA and that he therefore made the right call.
Time heals all wounds. And all misguided revolts. You're conservatives (supposedly). You'll get this.... eventually.
"The decision went against all applicable tenets of statutory construction, and ignored the plain meaning of words."
Well said. Ritmo lies or is delusional about what the statute said and why it said it. The authors (staff and lobbyists) assumed that states could be coerced into setting up their own exchanges by dangling incentives with tax payer money. It didn't work.
The law was failing, sort of like the web site, and Roberts wrote new law. The "COOps" are failing and the whole edifice will collapse once people have an alternative. Obama has avoided enforcing the employer mandate because there would be an outright revolt. The solution is simple. Don't bother about repeal. Just set up an optional alternative.
Obamacare is just an expanded Medicaid. Let them have it.
It's great to have a renown legal scholar like Michael K here, who believes that just because a specific word label wasn't assigned to something that amounted to a "tax", it ceased to be such a thing.
But then, he gets his arguments from Mick, a tried and true birther who thinks that not only is Obama foreign-born and ineligible to be president, but so are John McCain, Ted Cruz, and countless other political hacks alighting the pantheon of Republican heroes in Michael K's imagination.
Even Seven Machos thought Mick was nuts. Enough said.
"Time heals all wounds. "
Hmm... You think? Really?
"...something that amounted to a tax..."
The word "tax" is so hard to spell. I can totally understand why they didn't put it in there. Thank god we've got those philosopher kings in those special black robes, eh?
"Enough said."
Lol. Perhaps not. Let's wait and see.
The Godfather said...
"The best way to get rid of Obamacare is to elect a Republican President next year."
That is what they said when they forced the republican nominee to be the guy who wrote Obamacare in 2012.
"they forced the republican nominee to be the guy who wrote Obamacare in 2012. "
Sorry, but this is bullshit. This has been explained ad nauseous.
Do some reading, please.
"What explains the obsession with these two decisions"
Both were out of character for Roberts. And the first decision appeared like Roberts wrote the dissent but then changed his mind. Or someone got to him.
People are speculating he is under blackmail, either the threat of deportation for an adoption(?) or something similar.
This Linda Greenhouse lady needs to get out more. Anyone with any familiarity with the "obsession" over the Robert's rulings would have known all this. Hell, there is even a meme used to respond to the "not this hill yet" RINOS that goes something like: right, don't rock the boat, we need a Republican elected president so we can get a conservative on SCOTUS like John Roberts... Its meant as an insult.
The attacks from the goths and the skateboarders are logical enough. It’s the fire from the cheerleaders and football players that merits closer observation...
Poor Linda. She's so sad that conservatives are no longer buying into the scam where liberal judges change the law however their little hearts desire, and conservative judges are bound by stare decisis to keep the liberal cases on the books. My heart bleeds for her.
Albert said, "Greenhouse is insufferable (with Toobin a close second)." I dunno, that's too close to call.
"Well, I guess this post is a way of psychologically comforting conservatives into slowly accepting the obvious truth that there was no constitutional or judicial provision that would have allowed Roberts to strike down the ACA and that he therefore made the right call."
Absurd. The dissents, quoted a thousand times on a thousand blogs, were pretty rock solid in their arguments that there's no constitutional or judicial provision that can justify *not* striking down the ACA. *That* is why we're so pissed off at Roberts. The case was open and shut, we even had "the architect of Obamacare" (named so by the Obama Administration and the liberal media, not us, until he became inconvenient) on tape admitting the intent of the law multiple times, and Roberts just threw it.
Kinda how like Holder withdrew the case against the Black Panthers intimidating white Philadelphia voters *after* he'd already won summary judgment against them. (I saw local news coverage on election day 2008 of witnesses testifying on camera to having experienced it, it was compelling eyewitness testimony, one by an Iraq veteran who was directly threatened, and I never saw it again anywhere, TV or blogs, after that day).
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