June 29, 2018

Both The Washington Post and The New York Times have front-page articles touting Chief Justice John Roberts as the new "swing vote."

From The New York Times, "With Kennedy Gone, Roberts Will Be the Supreme Court’s Swing Vote":
Justice Sandra Day O’Connor became more moderate when Justice William J. Brennan Jr. and Justice Thurgood Marshall left the court, said Michael C. Dorf, a Cornell Law School professor who clerked for Justice Kennedy, and Justice Kennedy likewise moved to the center when Justice O’Connor departed.

“It could manifest in compromise positions in his taking substantively more moderate stances on issues,” Mr. Dorf said. “He might want to go slowly before taking an abortion case or an affirmative action case, or a same-sex marriage case to potentially overturn Justice Kennedy’s handiwork.”...

Mr. Dorf said that Chief Justice Roberts might act differently now that Justice Kennedy — often the deciding vote in those cases — was gone, much like congressional leaders spare their most vulnerable members of Congress from casting deciding votes on politically difficult issues....

“The best hope is to appeal to the chief’s sense of the court as a special, above-politics institution,” [said David S. Cohen, a law professor at Drexel University]. “Overruling [Roe v. Wade or the same-sex marriage case] in these circumstances would make the court and its justices appear like petty politicians.... [But] these justices don’t get to the point they are at in life without being political actors.... and this may be his political goal.”
From The Washington Post, "Roberts gets another key role on Supreme Court: Swing vote" (that's the front-page teaser headline, inside it's "If it wasn’t the Roberts court already, it is the Roberts court now"):
A court in which Kennedy is replaced by another Trump choice “is also likely to encourage conservative legal activists to shoot for the stars — look for cases seeking to overrule Roe v. Wade, reverse or undermine LGBTQ rights, including marriage equality, and erode the progress toward racial justice that the civil rights movement has fought tirelessly to have recognized by an often recalcitrant court,” [said Elizabeth B. Wydra, president of the liberal Constitutional Accountability Center].

Such bold action is not usually Roberts’s style, and the Supreme Court is institutionally averse to overturning precedents, a legal principle called stare decisis. Roberts’s preferred path, his defenders and detractors say, involves limiting the court’s precedents rather than reversing them....

Leah Litman, a liberal law professor at the University of California at Irvine, said the justices need not overturn the same-sex marriage decision to undermine it. “They could recognize a right for religious objectors not to marry LGB individuals; not to serve them; not to provide them health care; not to allow them to adopt,” she wrote.....

Michael McConnell, a former Republican-nominated federal judge and head of the Stanford Constitutional Law Center, said... “If Justice Kennedy is replaced with an interesting, relatively non-doctrinaire conservative (like the best names on Trump’s list) this could augur a more fluid court with a more substantive middle and fewer 5-4 splits,” he wrote in an email.... "Every action seems to have a countervailing reaction,” McConnell said. “It would not surprise me to see a few of the conservative justices breaking more frequently with the liberal side. The court as an institution does not like to see itself as the instrument of an ideological movement.”
ADDED: The center position is so powerful. Having seen the attention and (faux) adulation given to Justice Kennedy over the years, the Justices must be eyeing the vacancy. Some new person will get Kennedy's seat, but he is likely to be a staunch conservative like Gorsuch. The real vacancy we're seeing is in the "swing vote" position, and any Justice could feel pulled to try to sit there. Now, the liberals can't really aspire to occupy the position, but one of them, probably Justice Kagan, might become the force behind the swinging of one of the conservatives, and Roberts is the most likely to get swung. I picture Roberts seeing an opportunity to improve the reputation of the Court and to overcome the overt political look it's acquired over the years. I think there should be more elegant ways to do that than to simply throw his vote to the liberal 4 now and then. But if that's all he can do, I suspect he will.

158 comments:

MayBee said...

They remember, as I do, how much he gave in to pressure when the papers wrote about him before the ACA ruling. They are trying to influence him again. We'll see.

Expat(ish) said...

I guess the nueo-journolist participants are confident that Roberts reads their papers.

Nothing to lose your head over.

-XC

readering said...

Roberts will not go against things he has already written.

Kate said...

Our family's Wine Time Discussion Group came quickly to this conclusion on day one.

Robert Edick said...

Let the grooming begin.

ga6 said...

This type of story in known as "grooming"...

Florence said...

"Overruling [Roe v. Wade or the same-sex marriage case] in these circumstances would make the court and its justices appear like petty politicians."

Does it never occur to the people who write these sentences that the decisions themselves made the justices appear like petty politicians?

Of course it does; they are just hoping the masses don't make that connection.

SDaly said...

"The court as an institution does not like to see itself as the instrument of an ideological movement.”

This made me laugh out loud.

rehajm said...

Boy are they going to write threatening articles about him when a key case is pending.

Vote our way or no chicken dinner for you!

Bill, Republic of Texas said...

It doesn't matter. As soon as Breyer, RBG or Sotomayer keel over it's game over for the Dems and USSC.

Francisco D said...

"The court as an institution does not like to see itself as the instrument of an ideological movement.”

Don't tell that to the Notorious RBG and the Wise Latina.

Ray - SoCal said...

I wonder if anyone has tracked the influence of the NYT and Washington Post since Trump announced his candidacy?

What would be measured?

Hard copy distribution?

Digital readership?

Survey of consumer perceptions?

Articles cited?

Articles liked on FB?

Articles linked to by blogs?

Retweets?

AZ Bob said...

Well, he gave us Obamacare.

MountainMan said...

“When a single judge’s retirement turns the entire political world on its ear, we ought to consider that perhaps the Supreme Court has claimed too much power in our republic.” - Adam White, Hoover Institution, on Twitter yesterday

Unknown said...

How can you have fewer splits when one side of the court parrots the democrat media talking points? Like the media, the liberals on the court have shown they are completely aligned with the democrat media party.

AllenS said...

I can tell you who will never be a swing vote --

Ruth Bader Ginsburg
Sonia Sotomayor
Elena Kagan

Sebastian said...

""The court as an institution does not like to see itself as the instrument of an ideological movement.”

This made me laugh out loud."

Same here!

"Roberts will not go against things he has already written."

Since he has written, correctly of course, that Kennedy's substantive-due-process SSM-mandating BS had nothing to do with the Constitution, things could get interesting. But no, they won't--he will be a nice conservative, and conserve prog gains.

Ray - SoCal said...

Gut feeling is their political and cultural influence has declined precipitously with their branding by Trump as fake news and perception of being partisan.

Ralph L said...

I just knew Roberts was a swinger.
You could tell by his kids' clothes.

MountainMan said...

“A reminder that in a constitutional republic operating as it should, the decision of one man choosing to leave the 3rd branch of federal government should have virtually no impact on your day and none at all on your emotional state.” - Casey Mattox on Twitter yesterday

Rick said...
This comment has been removed by the author.
Freder Frederson said...

I can tell you who will never be a swing vote --

The same can be said about Alito, Thomas, Gorsuch and most likely whoever replaces Kennedy

Bob Boyd said...

Are you fucking shitting me New York Times?! A piece of the sky just landed right next to me!

MikeR said...

Is this supposed to make sense? The court will become more conservative, so the median member will become more liberal than Kennedy.
Maybe we should be talking about the "swing vote" for whether the majority is 6-3 or 5-4. That will have much more of an impact on whether the court is seen as political. I vote for Kagan.

Rick said...

I picture Roberts seeing an opportunity to improve the reputation of the Court and to overcome the overt political look it's acquired over the years.

Left institutions portray voting ideologically left as apolitical. Are we to believe Roberts doesn't understand this or understanding this falls victim to it regardless?

It seems unlikely.

Clyde said...

It Don't Mean A Thing (If It Ain't Got That Swing) - Duke Ellington (voc/Ivie A)

The Cracker Emcee Refulgent said...

Well the good news is they’re already moving to acceptance.
It occurs to me that the Prog Outrage Machine ensures that they can never concentrate on one thing long enough to effect the outcomes they say they desire. Outrage as euthanasia.

stevew said...

The overt political look of the Court that has developed over the years is a result of opinions and votes of the so-called liberal justices. The most recent 5-4 decisions provide excellent and contemporary examples that the liberals are focused on the outcome of rulings, i.e.; political ideology, rather than the law. How else to explain why the "Muslim ban" case, accompanied as it was by the tortured logic of the dissenters, was 5-4 and not 9-0?

-sw

Ignorance is Bliss said...

The real vacancy we're seeing is in the "swing vote" position, and any Justice could feel pulled to try to sit there.

Roberts doesn't need to move to the center. The center is moving to him. And he has no need to change his position in order to vote with the liberals. The mix of cases reaching the Supreme Court will shift, with the conservative granting cert on cases that they wouldn't have gotten to hear in the past. In some of those, the conservative side will be too far to the right for Roberts, so he will vote with the liberals. Having seniority, he can always write the opinion as he sees fit.

CWJ said...

Well. We know he can be swung.

tcrosse said...

So the sky isn't falling, after all ?

Sebastian said...

"(faux) adulation given to Justice Kennedy over the years"

We conservatives never adulated him. We appreciated him being on the right side in some cases, but considered him an arrogant SOB who made a mockery of the actual text and meaning of the Constitution especially in the gay right cases.

I do believe he got some non-faux love on this very blog for his famous rumination, a new penumbra emanating somewhere between the lines of the Constitution, that "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

From which he deduced, in law-logic fashion, that husbands have no say in abortion, since, actually, you know, their concept of existence etc. doesn't happen to matter, sorry, and also that the mystery of human life can be legally snuffed, because, you see, before "viability" the life of a baby has no existence and meaning the people or the law are allowed to protect.

But, purely as a political matter, which is all we are talking about anyway, the timing of his resignation does increase my respect for the guy.

rhhardin said...

I see Kagan giving sexual favors for swing votes.

Steve M. Galbraith said...

There is no and hasn't been a liberal Justice able or willing to "swing" a conservative over. Read their opinions. There is no moderation among Ginbsurg et al. None of them are trying to reach out to the other side. Obviously, we don't know what is going on behind the scenes, what type - if any - of give and take is going on. But I've not read of any.

Breyer may be the best candidate for it philosophically. Kagan may be the closest candidate temperamentally. But it hasn't been there. The liberal bloc of the court has been steadfast in not breaking ranks.

This is another example of the liberal press's hold on discussions. All of the talk is about a conservative moderating but none of the discussion is about a liberal moderating his or her view.

BleachBit-and-Hammers said...

I don't like the words "Staunch conservative."

It's like garner to my ears.

Ignorance is Bliss said...

Freder Frederson said...

The same can be said about Alito, Thomas, Gorsuch and most likely whoever replaces Kennedy

Are you really so sure about Alito? Assuming Trump replaces Kennedy with another Thomas/Gorsuch. Then one of the liberal Justices leaves the court, and Trump gets another pick. Who is the swing vote after that?

BleachBit-and-Hammers said...

Gorsuch is a realist.

Leftists are tethered to the interests of the democrat party and the democrat party money making machine.

Kennedy was a pro-individual rights/ pro-states rights jurist. He wasn't as ideological as either side wanted, but he was consistent in his pro-individual.

Big Mike said...

Some new person will get Kennedy's seat, but he is likely to be a staunch conservative like Gorsuch. [Emphasis added]

So you don't think it will be Amy Coney Barrett, Allison Eid, Britt Grant, Diane Sykes, Joan Larson, or Margaret Ryan? Just Askin'

Hammond X. Gritzkofe said...

NYT and WaPo spill ink reporting news of the future. Real story is Media promotion of SC Justices as personalities not curators of a coherent body of Law based on the Constitution.

BleachBit-and-Hammers said...

The two house organs for the democrat party SAY SO. Roberts better obey.

Fernandinande said...

"Swing Vote"

44.44% of Supreme Court Justices agree "We were wrong." Pretty bad track record.

Hammond X. Gritzkofe said...
This comment has been removed by the author.
Henry said...

It's fairly clear that even the doomsayers are talking about a marginal apocalypse.

Assistant Village Idiot said...

"Overcome the reputation of the court..."

Stoutcat said...

Blogger MikeR said... Maybe we should be talking about the "swing vote" for whether the majority is 6-3 or 5-4. That will have much more of an impact on whether the court is seen as political. I vote for Kagan.

This. My money's on Kagan, as well.

Henry said...

Maybe the justices should just draw lots each term to see what role they play. Okay, Steve, you go Sonia this term and Elena, you're the new Tony. It could be like debate team: you have to be ready to defend either side of an issue.

dreams said...

Yeah, I agree that Roberts is the most likely to be the swing vote.

Trump has a history of hiring women so I wouldn't be surprised if he choose Amy Coney Barrett.

Sebastian said...

"pro-states rights jurist"

What? The whole point of his SSM ruling was to obliterate the right states had always had to legally define marriage.

The abortion cases are "individual rights" cases only in the sense that they privilege of one the three individuals involved.

buwaya said...

I suspect that the threat of blackmail over Roberts has greatly lessened since 2016.
There was a secret hold over the fellow.

Never assume that the overt matters more than the covert. Quite often it is just a public consequence, sometimes a tangential one, of whats going on behind the scenes.

Ignorance is Bliss said...

I think there should be more elegant ways to do that than to simply throw his vote to the liberal 4 now and then. But if that's all he can do, I suspect he will.

Note that he won't simply throw his vote to the liberal 4. He has seniority, he'll write the opinion. (At least when it matters to him.)

readering said...

The best scenario for folks like me is that resistance from a key middle group of senators forces Trump to nominate someone who becomes another Kennedy type.

The problem there is that there is no Scalia on the court to piss off colleagues into voting against him.

readering said...

In that sense, Trump apparently has more sense than Scalia. Interesting NYT piece on Trump and White House efforts to stay on Kennedy's good side.

SeanF said...

"If Justice Kennedy is replaced with an interesting, relatively non-doctrinaire conservative (like the best names on Trump’s list) this could augur a more fluid court with a more substantive middle and fewer 5-4 splits."

I don't understand this. Kennedy essentially was the middle, wasn't he? How does replacing Kennedy with a true conservative give the court "a more substantive middle"?

Haven't most 5-4 decisions had Kennedy as one of the 5? (He was on the losing side of the ACA vote, but is that common?) If the new Justice votes the same as Kennedy would have, those decisions will still be 5-4. If the new Justice votes the opposite of how Kennedy would have, those decisions will still be 5-4.

MountainMan said...

A nice observation this morning from Betsy Newmark:

"I know that I just resented that so many crucial decisions came down to whatever Anthony Kennedy thought. I just don't think the Founders ever envisioned a government in which one man's opinions would have so much power. They didn't want the president to have that much power, but somehow we ended up having a single justice wielding that much power."

Robert Cook said...
This comment has been removed by the author.
tcrosse said...

Of course, it is politically necessary for Roe v Wade to be under imminent threat, as it has been since the 1980's.

Kevin said...

“Justice Kagan, might become the force behind the swinging of one of the conservatives, and Roberts is the most likely to get swung.”

Not unless her arguments get an order of magnitude or so better.

Robert Cook said...

"I don't understand this. Kennedy essentially was the middle, wasn't he? How does replacing Kennedy with a true conservative give the court 'a more substantive middle?'"

Here's another opinion of Kennedy.

Birches said...

Agree with Mike R. It's Kagan.

Kevin said...

“Of course, it is politically necessary for Roe v Wade to be under imminent threat, as it has been since the 1980's.”

It’s the white version of black people being put back into chains.

Anonymous said...

My impression is that the presence of Gorsuch has already pulled the Court, and Roberts along with it, to the the right a bit. Now "the right" has a strange meaning here because, to me, what the court has done this session is reaffirm the rule of law and the meaning of parts of the Constitution. I'd like the Professor's take on that observation.

If people are so worried about Roe being overturned it seems to me that they must have the feeling that it was not a very good decision in the first place. I agree with those who think the Court should have left abortion in the hands of the States, but Roe has been precedent for a long time and I wonder if the Court would even want to address it at this time - unless of course it as weak law as some of its proponents seem to think.

SSM affects so few people that it would not be worth the Courts time to revisit.

I do have the feeling that Roberts has a pretty good idea of which fights should be fought. People blame him for giving us Obamacare, but look what the result of implementing it has done to the Democratic party. Roberts' decision to leave Obamacare as a political question to be resolved by the People turns out to be a pretty good one.

Ignorance is Bliss said...

And what is wrong with 5-4 splits? Doesn't that just show that the lower courts are functioning properly? Isn't a 9-0 opinion a case where the lower court seriously f-ed things up? ( I'm assuming that the 9-0 is to overturn the lower court, otherwise they would not have taken the case )

Qwinn said...

That no one even seriously considers any of the liberal justices occupying anything close to the center... as if there's nothing at all wrong with that and should be expected... is all kinds of revealing.

mezzrow said...

I'm thinking about hearing Jordan Peterson's quotation of data on rats fighting/playing. The big rat can only get the little rat to participate if the little guy is allowed to win about 30% of the time. It would be sad if this is how our jurisprudence is regulated on its highest level in our republic.

Leland said...

Ha! They already given up the battle. Now they are hoping to win the war by pressuring Roberts to be moderate, err vote left as much as possible.

dreams said...

"Ha! They already given up the battle. Now they are hoping to win the war by pressuring Roberts to be moderate, err vote left as much as possible."

It worked with Obamacare.

SGT Ted said...

Civil Liberties aside, it's rather ironic how the people who whine the most about "DEMOCRACY" rely on 5 people to vote to override the representatives of the rest of the people in enacting policy.

Original Mike said...

”It doesn't matter. As soon as Breyer, RBG or Sotomayer keel over it's game over for the Dems and USSC.”

Haven’t you heard the latest? They are planning to pack the Court the next chance they get.

rcocean said...

It'll probably be Roberts, because like Kennedy, he doesn't seem to have any real constitutional philosophy.

If you remember, Arlen Specter and a bunch of Moderate-liberal D's were VERY enthusiastic about Bush picking Roberts.

There was a reason for their cheerleading.

I hate these swing vote types, because it reduces constitutional law to what Roberts or O'Connor or Kennedy felt that particular day, they made the decision and a lot of ridiculous "cutting the baby in half" compromises.

rcocean said...

There's zero reason to believe Roberts or Goresuch would overturn Roe v. Wade

Its just the usual Democrat Hype.

Chuck said...

"The Greenhouse Effect."

What a lot of dazzlingly great comments from the Althouse commentariat today on this post!

rcocean said...

Justice Kennedy was Judicial equivalent of John McCain.

A grandstander and egoist with no real philosophy of government/constitution law who loved the cheers of the New York Times.

Anonymous said...

Here's a great piece on Never-Trumpers. A bit off topic, but a good analysis of Kristol et al. LINK.

Francisco D said...

"What a lot of dazzlingly great comments from the Althouse commentariat today on this post!

Chuckles,

I guess that you have been a tremendous disappointment to your friends and family. Only a true failure would continue to use a blog to denigrate others in order to elevate himself.

Sometimes you sound rational and well thought out, and I agree with what you have to say. But in the end, it's all about you and your sense of inadequacy, isn't it?

Drago said...

LLR and #StrongDurbinFanBoy Chuck: "What a lot of dazzlingly great comments from the Althouse commentariat today on this post!"

LOL

So much Trump #Winning and so much LLR Chuck unearned and undeserved self-annointing.

Too funny.

Lance said...

Now, the liberals can't really aspire to occupy the position

Why not? Is there something written into their contract? Are they barred by some arcane code of ethics? Do they fear for their lives?

Martin said...

Well, the liberal media rolled Roberts on Sibelius, so it having been proven doable, why not give i a go now?

Drago said...

Just yesterday our intrepid and insightful LLR and Self-described MI legal and political prognostication "expert" was regaling with this, and pay attention to this very very carefully:

Did you know that sometimes, sometimes, when a vote is certain to go one way or the other in the House or Senate, a member might strategically switch their vote at the last minute for political purposes!!!

Amazing!

Astonishing!

LOL

What's so funny about Chuck is how many times he'll cough up something every 3rd grader would know as if he is the bearer of deep knowledge and insight.

On a serious note, it's a very revealing and telling habit that exposes much of what his larger issues must be.

Plus, Maddow and O'Donnell on MSNBC (a couple of Chuck's strong "go to" talking points sources) probably discussed it recently as well.

Yancey Ward said...

Roberts record on the court suggests this is NYTimes and WaPo delusions. O'Connor did not moderate in the way they describe- she was always closer to the center than Rehnquist was.

The ACA decision was Roberts keeping the court out of a very contentious political mess for the most part, and probably, in hindsight, the right decision given that Congress has since eliminated the mandate. And here is something many people forget- Roberts probably traded that decision on the mandate for the other part of that decision most seem to forget- the states weren't forced to take the Medicaid expansion, and that part of the decision was 7-2 and immune from accusations of "legislating from the bench".

Martin said...

Lance @ 10:06am:
Now, the liberals can't really aspire to occupy the position

Why not? Is there something written into their contract? Are they barred by some arcane code of ethics? Do they fear for their lives?

ANSWER: There are only 4 of them.

Drago said...

I wonder if the press will once again turn up the heat on Roberts' family, in particular his children.

The despicable left derives real pleasure from going after the kids in order to create pressure on the parents.

Some LLR's do the same thing of course, as the LLR's and the despicable left are fully operationally aligned.

eric said...

So this may work as a calming balm for now. But it means the Dems are going to freak out even more (is that possible?) When the next liberal justice gets replaced by Trump.

Drago said...

Martin: "ANSWER: There are only 4 of them."

I would ask you to keep the higher order math out of the discussion until the cocktail hour, thank you very much.

Drago said...

eric: "So this may work as a calming balm for now. But it means the Dems are going to freak out even more (is that possible?) When the next liberal justice gets replaced by Trump"

The far left freaks should learn not to freak out so much.

After all, so many "Lifelong republicans", "principled conservatives" and "true conservatives" are working very hard with the dems and their donors to make sure that only democrats win in the future.

That's how you can tell who the "lifelong republicans", "principled conservatives" and "true conservatives" really are: they are the ones fighting to elect democrats......

Chuck said...

Wait a minute, Francisco D.

I wrote that there were a lot of dazzlingly great comments on this post because... I think that there are a lot of dazzlingly great posts.

These are my favorites, in no particular order because I just want to cut-and paste as many as I can in short order. Kudos to each and every one of these authors:

MayBee said...
They remember, as I do, how much he gave in to pressure when the papers wrote about him before the ACA ruling. They are trying to influence him again. We'll see.
***
Francisco D said...
"The court as an institution does not like to see itself as the instrument of an ideological movement.”

Don't tell that to the Notorious RBG and the Wise Latina.
***
AllenS said...
I can tell you who will never be a swing vote --

Ruth Bader Ginsburg
Sonia Sotomayor
Elena Kagan
***
Rick said...
"I picture Roberts seeing an opportunity to improve the reputation of the Court and to overcome the overt political look it's acquired over the years."

Left institutions portray voting ideologically left as apolitical. Are we to believe Roberts doesn't understand this or understanding this falls victim to it regardless?

It seems unlikely.
***
Ignorance is Bliss said...
"I think there should be more elegant ways to do that than to simply throw his vote to the liberal 4 now and then. But if that's all he can do, I suspect he will."

Note that he won't simply throw his vote to the liberal 4. He has seniority, he'll write the opinion. (At least when it matters to him.)
***
Sebastian said...
"pro-states rights jurist"

What? The whole point of his SSM ruling was to obliterate the right states had always had to legally define marriage.

The abortion cases are "individual rights" cases only in the sense that they privilege of one the three individuals involved.
***
Henry said...
It's fairly clear that even the doomsayers are talking about a marginal apocalypse.
***
Unknown said...
The overt political look of the Court that has developed over the years is a result of opinions and votes of the so-called liberal justices. The most recent 5-4 decisions provide excellent and contemporary examples that the liberals are focused on the outcome of rulings, i.e.; political ideology, rather than the law. How else to explain why the "Muslim ban" case, accompanied as it was by the tortured logic of the dissenters, was 5-4 and not 9-0?

-sw
***
Qwinn said...
That no one even seriously considers any of the liberal justices occupying anything close to the center... as if there's nothing at all wrong with that and should be expected... is all kinds of revealing.
***
SGT Ted said...
Civil Liberties aside, it's rather ironic how the people who whine the most about "DEMOCRACY" rely on 5 people to vote to override the representatives of the rest of the people in enacting policy.
***

I'm limited, by the limits of the blogger.com commenting space. My apologies to the authors of some of the other great comments on this page. Francisco D, I included one of your own comments that I really liked.

Do you get it now? I truly liked these comments.

Bob Boyd said...

@ Khesanh 0802

That is good. Thanks for the link.

hombre said...

We do know that any flexibility will have to come from the "conservative" side. The liberal side is totally, predictably, ideologically committed to the progressive template however ridiculous the reasoning.

The Godfather said...

I don't think Roberts wants to be the kind of "swing justice" who sometimes joins the Left Bloc in a 5-4 decision and sometimes stays with the Right Bloc in a 5-4 decision. What I think Roberts would like to do is encourage more 6-3 decisions in which a member of the Left Bloc joins with the conservatives. This could be done by narrowing the scope of some "conservative" decisions to gain the vote of a member of the Left Bloc. Already there are subjects on which the Court doesn't break on a strictly Left v. Right basis. We could see more of those. It's not likely, however, that this will happen with respect to the "hot button" issues.

Ignorance is Bliss said...

Lance @ 10:06am:

Now, the liberals can't really aspire to occupy the position

Why not? Is there something written into their contract? Are they barred by some arcane code of ethics? Do they fear for their lives?


Martin said...

ANSWER: There are only 4 of them.

Any of the liberals could, if they wanted to, take on the role of swing vote. But to do so, they would have to move to the right of Roberts. This would mean ruling in accordance with the Constitution.

So they have a choice. They can be a liberal, or they can be the swing vote. They can't be both.

Leland said...

It worked with Obamacare.

Only to the point that Roberts allowed it to continue. He wrote his own opinion, which was pretty originalist; "You want this fixed? Do it through legislation, don't ask the court to fix it!" If not for a liar like McCain, that Ann was smarter than me not to vote for; Congress would have fixed it the right way.

Lance said...

ANSWER: There are only 4 of them.

So if a Justice's political party is only represented by four members of the Supreme Court, they can't swing their vote to the other side?

hombre said...

Roberts, a simple-minded conservative, will undoubtedly read these pieces and, as planned by the shrewd, intellectually superior mediaswine at WaPo and NYT, begin planning his new path as swing vote.

bgates said...

LA Times in 2008: Another "Yes on 8" canard is that the continuation of same-sex marriage will force churches and other religious groups to perform such marriages

Emily Bazelon in 2012: Will Churches Be Forced To Conduct Gay Weddings?
Not a chance. That’s just the scare tactic conservative groups use to frighten voters.


WaPo today: the justices need not overturn the same-sex marriage decision to undermine it. “They could recognize a right for religious objectors not to marry LGB individuals

TWW said...

I agree. Kagan is the interesting one. Is there a moderate conservative trying to break out from a liberal cocoon?

bgates said...

The arc of the legal universe is long, but it bends towards things progressives swore they didn't have in mind five minutes ago.

MayBee said...

Hahahhahaha bgates!!!

DavidD said...

“I think there should be more elegant ways to do that than to simply throw his vote to the liberal 4 now and then.”

Didn’t he do that already with the Obamacare decision?

Browndog said...

We already know Obama used our intelligence services to spy on everyone. EVERYONE.

We already know that Roberts changed his mind on the Obamacare vote, with Obama's legacy hanging in the balance.

This is why it is so important for Trump to dismantle the deep state, and why Mueller will stop at nothing to keep him from doing so.

Roberts is no swing vote. I don't see him being forced to swing from here on out.

Drago said...

LLR Chuck: "I'm limited, by the limits of the blogger.com commenting space."

Sweeter and more welcome words have never been written.

Anonymous said...

Again I am interested in Ann's opinion. My hypothesis is that there has been a shift in the court with these last few decisions. There seems to be a developing consensus that the law and Constitution really stand for something again. Is Gorsuch having an impact on the debates within the court? Is Trump's leadership toward action and enforcing laws as written having an impact on the court? Sotomayer's dissents seem particularly weak and ephemeral given the strength of the majority opinions. Is that significant of the loss of momentum on the liberal side?

It could all change next session but these last few decisions combined with Thomas' lecture about national injunctions make me feel there is a new assertiveness or self confidence in the "law is law not wishes" wing.

Earnest Prole said...

This analysis is undeniably true but premature, because first we must watch the spectacle of swing senators like John McCain exert the same power, much as France did during the Cold War.

Yancey Ward said...

One thing I would say in only a half-joking way is this- if I were a Republican Senator from a state with Democrat governor, I would beef up my security significantly.

Howard said...

This is the obvious hope that Democrats need to keep them going because they know that the nominee will be announced soon to have maximum influence on the midterms

Ignorance is Bliss said...

bgates said...

WaPo today: the justices need not overturn the same-sex marriage decision to undermine it. “They could recognize a right for religious objectors not to marry LGB individuals

While I found that amusing, I think that there is a difference between a church being required to perform a same-sex marriage, and a government official, such as a justice-of-the-peace, being required to.

Browndog said...

Within 2 hours, liberals went from hating Kennedy for his right wing decisions to lamenting his retirement, claiming it would fundamentally change the Court.

Skippy Tisdale said...

“is also likely to encourage conservative legal activists to shoot for the stars — look for cases seeking to overrule Roe v. Wade, reverse or undermine LGBTQ rights, including marriage equality, and erode the progress toward racial justice that the civil rights movement has fought tirelessly to have recognized by an often recalcitrant court,”

What a crock of shit. This isn't news; it's slanted guessing of the unknown.

Howard said...

Prog rumor is Kennedy recently started becoming more conservative, then retired early since his son is tied to to the Kushner Krime Klick

https://www.independent.co.uk/news/world/americas/us-politics/justice-anthony-kennedy-retirement-supreme-court-trump-white-house-a8422751.html

Chuck said...

Drago said...
LLR Chuck: "I'm limited, by the limits of the blogger.com commenting space."

Sweeter and more welcome words have never been written.


You miserable, obsessive little troll. You presumed that I was criticizing the comments on this page, and that I somehow secretly oppose conservative judges because, uh, that is what you think I think. Despite my clear writing in strong support of Scalia, Thomas and Alito, and my support for (Kennedy's) Citizens United opinion and my derision of (Kennedy's) Lawrence and Obergefell opinions.

With all of the "Derangement Syndromes" going around these days, what is the name of your own Derangement Syndrome?

traditionalguy said...

MSCGA. Make Supreme Court Great Again.

grackle said...

Roberts ruled that the individual mandate was a “tax,” a delightful example of judicial bullshit. No problem - Trump’s Tax Cuts and Jobs Act ended the individual mandate. Trump always seems to find a way.

Chuck said...

grackle said...
Roberts ruled that the individual mandate was a “tax,” a delightful example of judicial bullshit. No problem - Trump’s Tax Cuts and Jobs Act ended the individual mandate. Trump always seems to find a way.


How's the "replace" part of "repeal and replace" coming along?

Yancey Ward said...
This comment has been removed by the author.
Yancey Ward said...

"How's the "replace" part of "repeal and replace" coming along?"

If the law isn't severable as the Obama Administration argued in 2012, probably pretty good with the mandate now gone.

Ignorance is Bliss said...

Chuck said...

How's the "replace" part of "repeal and replace" coming along?

I was always more of a repeal and rejoice kinda guy, so I'd say splendidly.

Drago said...

LLR and #StrongDemDefender Chuck: "You miserable, obsessive little troll."

LOL

If I became a registered democrat and huge MSNBC fan and advocate of destroying the Trump presidency and republican majority, you would instantly become my biggest fan.

Instantly.

johns said...

I am more interested in the NYT story about how Trump attempted to influence Kennedy to retire by nominating lots of former Kennedy clerks to judgeships. And because several of the judges on Trump's list are former Kennedy clerks, Kennedy knows these people and can judge whether those people would overturn his favorite decisions.
For this reason, I do not expect Roe to be overturned. Roberts may not want it overturned, and a new justice who clerked for Kennedy may not want that either.

Drago said...

LLR and #StrongMSNBCNarrativeAdvancer Chuck: "You presumed that I was criticizing the comments on this page...."

I did no such thing.

LOL

Drago said...

LLR Chuck: "With all of the "Derangement Syndromes" going around these days, what is the name of your own Derangement Syndrome"

I call it: "Practicing What Chuck Preaches"

Drago said...

LLR Chuck: "Despite my clear writing in strong support of Scalia, Thomas and Alito, and my support for (Kennedy's) Citizens United opinion and my derision of (Kennedy's) Lawrence and Obergefell opinions."

The inescapable outcome of following your prescriptions would be invincible democrat majorities and permanent democrat control.

Again, I care not a whit about what you claim to be or what you claim to want, I am only concerned with what is happening where the rubber meets the road: actual operational activities and how those activities align with one side or another.

You are indeed the most "lifelong-y" "republican-y republican" who ever walked the earth....and the lefties on this blog and the democrats everywhere are grateful for your "contribution"....

LOL

Achilles said...

Chuck said...
grackle said...
Roberts ruled that the individual mandate was a “tax,” a delightful example of judicial bullshit. No problem - Trump’s Tax Cuts and Jobs Act ended the individual mandate. Trump always seems to find a way.


How's the "replace" part of "repeal and replace" coming along?

McCain and the rest of the cuck wing of the Democrat party killed it.

pacwest said...

I think part of the problem is that SCOTUS is having to deal with a lot of cases that shouldn't be in front of them to begin with due to lower court rulings. The travel ban case in point. It is a sorry state of affairs that we feel we need to solve all of our problems through the courts. It does help the lawyers bottom line though. So there's that.

Bad Lieutenant said...

If Roberts becomes a problem, just expose his child adoption scandal, impeach him, and have PDJT choose a worthy replacement. If Obama could blackmail him, why not everybody?

walter said...

Blogger rhhardin said...I see Kagan giving sexual favors for swing votes.
--
Alrighty..skipping lunch today...

n.n said...

Human rights, ideally from conception, or around one month with the formation of a coherent nervous system.

Civil unions, because the goal is equal rights, not political congruence ("=") or selective exclusion (i.e. Pro-Choice).

Jim at said...

They remember, as I do, how much he gave in to pressure when the papers wrote about him before the ACA ruling.

It wasn't the papers pressuring him. It was Barack Hussein Obama.

And it was one of the most disgusting things I've ever witnessed in politics.

The President of the United States publicly shaming the Chief Justice of the Supreme Court before an opinion had been made public.

I've seen more seemly temper tantrums by two year olds.

Jim at said...

Roberts will not go against things he has already written. - Readering

Um, he already did. Famously.

FIDO said...

Translation: We keep losing so much in the court of public opinion that it is affecting our ability to even get liberal ringers into the SC, so we are concern trolling Roberts to go our way.

I hope Roberts doesn't move an inch and let's the Liberals lose and lose and actually have to WORK at changing public opinion the hard way be A) acknowledging what is possible and B) understanding that being whiney, protesting, pussy hat wearing assholes is not going to change anyone's opinion.

Wow, tolerance and civility! What a concept!

pacwest said...

If in any way a case before any court has anything to do with "human rights" that are not explicitly mentioned in the Constitution it should never be heard. That not the job of the Judicial. That's the Legeslative branch's job. Correct me if I'm wrong.

readering said...

Wrong

pacwest said...

I was hoping for a little lengthier rebuttal ;)

grackle said...

How's the "replace" part of "repeal and replace" coming along?

Not well, I assume. But isn’t this a question better put to the nincompoops, nitwits and posers in Congress?

Congress to me resembles a team, say, like the LA Lakers that is in a rebuilding phase. Some valuable players will be retained. The slackers, dullards and the untalented will disappear – as General Manager Trump contemplates his draft picks.

Rabel said...

Reading through the comments on the Post article it's clear that this country has been broken apart by the media. I don't see how it recovers peacefully.

readering said...

Many human rights are enshrined in treaties and statutes and the common law. One should also take an expansive reading of the Bill of Rights. (Like the right not to have the government track you through cell phone records without a warrant or exigent circumstances.) Why should basic human rights be at the deference of the legislature?

becauseIdbefired said...

Prostitutes are more honest.

n.n said...

Abortion rites (e.g. selective-child/wicked solution, one-child) can be traced to the liberal (i.e. divergent) days of sacrificial rites in the Aztec empire, the life deemed unworthy doctrine (e.g. Jew privilege) of the National Socialists, the progressive leap of Chinese communists, etc. It was a simpler time when the twilight faith (e.g. belief in storks) was rampant, and human parts and clumps of cells were profitable commodities. That said, there are still people who deny evolution of human life from conception, and advocate for torture from around one month later, for wealth, pleasure, leisure, social progress, and Democrat leverage. Fortunately, more people are rejecting the twilight faith (and Amendment) and losing their Pro-Choice, selective, opportunistic, politically congruent (PC) religious/moral philosophy. Baby steps.

n.n said...

The NYT is probing the edge cases of abortion rites in collusion with the DNC to determine the limits of human tolerance and credulity. The Aztecs had nothing on their contemporary's wicked solution.

mikee said...

Roberts decision on Obamacare was so amazingly contorted that there must be a file with his name on it, containing some very clear video, somewhere in a secure location.
Otherwise, one must believe that the esteemed Chief Justice actually believed that crap he wrote (or had written for his signature), which is nearly impossible.

gg6 said...

ALTHOUSE SAYS: "I think there should be more elegant ways to do that than to simply throw his vote to the liberal 4 now and then. But if that's all he can do, I suspect he will..."
Yup. Yet another sad but probable truth of where we are these days. roberts is a cliche of what happens to those whose apparent convictions are less than even skin deep.

pacwest said...

"Why should basic human rights be at the deference of the legislature?"

I guess I've never quite understood the concept of "basic human rights". Outside of the rights that our government gives us what do we have? Consider complete anarchy. What human rights does that have? God given compassion substituting for law given rights seems unreliable at best, horrific at worst. I'd say our rights and lack thereof are entirely given by the government we choose. We aren't born with them. They are a social construct.

If that is correct then the laws of the land give us our rights. Congress makes laws. Judicial interprets and enforces them.

When people start talking about basic human rights that are outside and superior to the social contracts we make with each other I have no idea what they are talking about other than wishful thinking.

iowan2 said...

The left is going nuts because the left has never had the support of the people to legislate a single piece of their ideology. Everything they are terrified of losing has been gained by judges, acting as robbed oracles interpreting the emanations and penumbra of the Constitution and inventing things that don't exist, and, the population wont support legislatively.

Gahrie said...

I'd say our rights and lack thereof are entirely given by the government we choose. We aren't born with them. They are a social construct.

That's what Marxism says and the Left believes. Our country was founded on the idea that we are born with certain rights: life, liberty and property (or the pursuit of freedom). That is we are created with the right to exist, the right to be free, and the right to benefit from our efforts. These rights aren't given to us from government or a social contract...because if they can be given they can be taken away. Government is a necessary evil to protect these rights.

Unknown said...

There should be a more apt name than swing vote

The legislator's place?
The narcissist chair?

The sexual revolution point man?

The rights discovery location?

The next disappointment?

The freelancer

n.n said...

endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted

The Twilight Amendment is in contrast to our fundamental human rights. It seems to have been inspired by the Aztecs and other barbaric cultures with human sacrificial rites.

Saint Croix said...

I do not expect Roe to be overturned. Roberts may not want it overturned, and a new justice who clerked for Kennedy may not want that either.

What's fascinating to read are Kennedy's two opinions in the Carhart cases. They are perhaps the angriest opinions I've ever read from a Supreme Court Justice. They are brutal, they are honest, they are mean, they are so true. These opinions are the most pro-life opinions ever written in the history of the Supreme Court. Scalia's dissent in Casey is positively genteel by comparison. And Scalia's dissent in Carhart is a nothing burger.

What makes Kennedy's dissent so shocking is how factual it is, how matter-of-fact. He describes the abortion procedure in graphic detail, and talks about the homicide of a baby using explicit language. He is obviously appalled by it.

How much of this was Catholic guilt, over his participation in Planned Parenthood v. Casey? And also perhaps a real feeling of betrayal. Kennedy saw himself as a man attempting to find a middle ground. And the other side simply takes the barbarity outside the womb, and starts killing babies in the middle of birth.

After tens of thousands--perhaps over 100,000--babies were murdered in the middle of birth, O'Connor retired in 2005, and Alito replaced her. And so Kennedy got the opportunity to write Carhart II.

I have no doubt that it was reading these two opinions that really drove home for me the homicidal nature of abortion. Anthony Kennedy himself informed and empowered the pro-life movement by his opinions in these cases.

It is quite strange that he went back to "normal," and joined the anti-life brigade, and went back to affirming the "right" to kill unborn children.

I think it's highly unlikely that any Republican will try to follow in Anthony Kennedy's abortion footsteps. Either he or she will go full Souter and become a screaming liberal. Or he or she will calmly and decisively join the four, and vote to overrule that awful opinion causing all this fuss.

Saint Croix said...

Here is Justice Kennedy, informing us all about the homicidal nature of abortion...

As described by Dr. Carhart, the D&E procedure requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina. Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body. The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is described by Dr. Carhart as “pulling the cat’s tail” or “drag[ging] a string across the floor, you’ll just keep dragging it. It’s not until something grabs the other end that you are going to develop traction.” The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off. Dr. Carhart agreed that “[w]hen you pull out a piece of the fetus, let’s say, an arm or a leg and remove that, at the time just prior to removal of the portion of the fetus, … the fetus [is] alive.” Dr. Carhart has observed fetal heartbeat via ultrasound with “extensive parts of the fetus removed,” and testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born “as a living child with one arm.” At the conclusion of a D&E abortion no intact fetus remains. In Dr. Carhart’s words, the abortionist is left with “a tray full of pieces.”

It's kind of similar to Thomas Jefferson, the slave-owner who was appalled by slavery. Here is Jefferson, blaming the king for the evils of slavery…

he has waged cruel war against human nature itself, violating it's most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, & murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

Jefferson never was an abolitionist, and Kennedy never was a pro-lifer. And yet their honesty and their outrage nonetheless inspires people to see the wrong. I think Kennedy, and the other pro-choice jurists, will go down in history as people with moral blind spots similar to the slave-owners of our history.

Gahrie said...

There should be a more apt name than swing vote

The pivot man?

pacwest said...

"Our country was founded on the idea that we are born with certain rights: life, liberty and property (or the pursuit of freedom). That is we are created with the right to exist, the right to be free, and the right to benefit from our efforts."

In other words God given rights. I think I already expressed my disdain for those. If we all believed in the same god it might work, but I doubt it. The certain rights were not rights until they were codified by our founders. The government makes laws that defines and enforces social contracts. The representative body makes law. Therefore our our rights come from them. Different times, different governments, different rights.

Still having a hard time understanding what basic humans rights means when spread among nations, religions and eras. They just don't seem to be universal to me. If they even exist.

I always tried to use self interest tempered by The Golden Rule as my guide.

JAORE said...

So, without Roberts the Court is without a clear swing position. Is it therefore unhinged?

n.n said...

Life is a fundamental, unalienable human right, that in civilized cultures can only be aborted for causes of self-defense.

endowed by their Creator

Not "God", but rather their "Creator". Some faiths trust that the "Creator" is Gaia. Some trust that it is the Stork (e.g. spontaneous conception). Most Americans trust that it was God.

n.n said...

It is quite strange that he went back to "normal," and joined the anti-life brigade, and went back to affirming the "right" to kill unborn children.

In the face of a democratic consensus that affirms transhuman rites people are driven to go along to get along to reduce the pressures of cognitive dissonance forced by a secular faith and armed resistance. The Supreme Court relieving people from endorsing the torture and abortion of human lives deemed unworthy is the first step in moral and cultural reform and mitigating the risk of progressive corruption.

Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body. The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is described by Dr. Carhart as “pulling the cat’s tail” or “drag[ging] a string across the floor, you’ll just keep dragging it.

Denied a voice to protest, and literally disarmed, dismembered, decapitated, so that their fundamental human rights may be violated under a layer of privacy (Twilight Amendment, but normalized through advocacy and activism). With the formation of a coherent nervous stem around one month, a procedure torture that is rarely known in the civilized world.

Apparently, inspired by an ancient Aztec ritual that sacrificed human life to appease the [mortal] gods.

n.n said...

I think Kennedy, and the other pro-choice jurists, will go down in history as people with moral blind spots similar to the slave-owners of our history.

A warning to future generations to not go along to get along, to not adopt a Pro-Choice religious/moral philosophy, but rather to strive for a conservation of principles that are internally, externally, and mutually consistent. Christianity is such a philosophy, which some may say is divinely (i.e. omniscient) inspired.

Gahrie said...

In other words God given rights. I think I already expressed my disdain for those.

No natural rights. Many of those who proposed these ideas and incorporated them in the birth of our nation and our country were atheists and Deists. These rights are our birthright, a fundamental aspect of our humanity. A worker bee is born as a slave to its queen..it could not even comprehend the meaning of liberty...it was born that way. Man was born with the right to life, liberty and property because we are human, not because we believe in a god.


Still having a hard time understanding what basic humans rights means when spread among nations, religions and eras.

Easy...life, liberty and property.

They just don't seem to be universal to me. If they even exist.

Just because your rights are denied and abused doesn't mean they don't exist. we're back to government being a necessary evil. Why is it evil? Because it is often used to deny people their rights.

Gahrie said...

The government makes laws that defines and enforces social contracts. The representative body makes law. Therefore our our rights come from them. Different times, different governments, different rights.

Then why is slavery evil? Slavery is a form of social contract, backed by the force of government, just not one that the slaves are allowed a voice in.

pacwest said...

Not sure what natural rights are either. Do animals get them? Something to do with human biology? Do they spring from self awareness? What makes them automatic to being human? I remain unconvinced. I will, however, check my premises again.

Michael Fitzgerald said...

"staunch conservative"- Maybe the tritest phrase extant in the political lexicon.

Michael Fitzgerald said...

So NOW I read Dickin' With Bimbo's comment at 8:45AM- And I concur!

Granny said...

They are grooming him for their proffered adulation. This will create 'goodwill' from the swampthings.

They caution him simultaneously; vote to sanction the perverse society or we will destroy you.

Saint Croix said...

I always tried to use self interest tempered by The Golden Rule as my guide.

I think the equal protection clause was inspired by the golden rule.

Do unto others as you would have them do onto you.

Apply the same rule to other people that you would apply to yourself.

What makes Roe v. Wade so wrong is that the Court defined unborn children as sub-human, as non-persons, as property, and put these babies outside the law. This was the tactic of both slaveowners and Nazis. Define the people you dislike as an other, as a non-person, as sub-human.

If the Court were to recognize the humanity of our unborn children, then we would start asking serious questions about our death statutes and homicide laws. Why do these rules not apply to the case of a doctor stabbing a baby to death?

One could, of course, argue that babies are weaker than adults. They can't feed themselves, for instance, or shelter themselves. Babies are the weakest human beings. This is why Plato and Aristotle argued that people had a right to abandon their children to die. You had no moral or legal obligation to your baby. Justice Blackmun affirmed this philosophy in Roe when he based his "viability doctrine" on the writings of the ancient pagans. But of course if we followed the ancient pagans in this manner, we would start killing newborns as well. And of course many abortion doctors have gone on to do just that.

The Christian rule is that we should love. We should love strangers. We should love our enemies. Certainly we should love our own child. Jesus Christ never took a partisan position on slavery, or abortion. But his commandment that we should love is an answer to these divisive issues. Do you love your slave? Do you love your unborn child? If we do not, then our heart is in the wrong place. If you are a loving person, there is no slavery. It's not an issue. And the same goes with infanticide, or any other crime.