June 6, 2019

Linda Greenhouse has noticed "a meme in conservative media" that liberals are using the idea of the Supreme Court's "legitimacy" to flip John Roberts to the liberal side.

She says, in "Who Cares About the Supreme Court’s ‘Legitimacy’?" (NYT).
“There’s a wooing going on,” David French warned in National Review in March under the headline “The Temptation of John Roberts.” His focus was not the census case but abortion and the Mueller report. “According to this construct,” Mr. French wrote, “it’s Roberts the ideologue who would vote to restrict abortion rights. It’s Roberts the conservative who would back the Trump administration. But a chief justice who cared about the institution of the Supreme Court? Well, he guards Roe. He checks Trump.”

In The Wall Street Journal last month, under the headline “John Roberts’s ‘Illegitimate’ Court,” the newspaper’s editorial columnist, William McGurn, wrote: “For those not fluent in modern Beltway, let us translate: It’s a threat, aimed at John Roberts. If the chief justice does not produce the desired progressive outcome, the Roberts court will find itself attacked as institutionally illegitimate.” This week, The Journal’s editorial board took aim at the new development in the census case under the headline “Census Target: John Roberts.” “Whenever you read ‘legitimacy’ in a sentence about the court, you know it’s a political missile aimed directly at Chief Justice John Roberts.”...

[T]he steady flow of right-wing commentary mocking concerns about the Supreme Court’s legitimacy (and I readily admit to having added my voice to those concerns) leaves me with this thought: What about the other justices? Why is it assumed on the right that Chief Justice Roberts is the only conservative on the court who has its welfare in view and who worries about the loss of public confidence if the justices come to be seen as mere politicians in robes?

Maybe the question answers itself....
No, the question shouts out, I'm not the question!

And the "right-wing commentary" is not "mocking concerns about the Supreme Court’s legitimacy." Everyone on the Court is concerned about its "legitimacy," a concept that includes, among other things, a lot of fretting about whether the Court will be perceived as deserving the power it wields, which is, ironically, a very political concern.

"Legitimacy" is a category of rhetoric, and everyone uses it. The most frustrating thing for liberals is that non-lawyer people tend to think that the conservative approach to constitutional interpretation is the right way to do it and that the liberals seem to want to use the courts as an alternative to the legislative process.

The wooing of Chief Justice Roberts that Greenhouse quotes is an effort to get the legitimacy talk working in the liberal direction. It's not a new subject. It's a big, long, old conversation.

60 comments:

Mr. D said...

Greenhouse has been doing this sort of thing for over 30 years. She will be the arbiter of legitimacy, because she’s got the sinecure.

rhhardin said...

It's court privilege. Makes its own law.

MayBee said...

No, the question shouts out, I'm not the question!

So good, Althouse.

rehajm said...

The question I have - Do the threats work? Recent history suggests the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites

tim in vermont said...

So if the WSJ is “right wing” who is center right? MSNBC? CNN?

Darrell said...

The Left supports the Constitution.
Says nobody.

h said...

The folklore of the ACA decision is that Chief Justice changed his vote from opposing ACA to supporting ACA because of public commentary or fear that the court would be seen to be political (or something). Greenhouse is concerned that the liberal strategy to similarly nudge Roberts to oppose any weakening of abortion rights can only succeed if it is not seen as a liberal strategy to nudge Roberts. Therefore, she objects to conservative writers pointing out that liberals have this strategy.

The Godfather said...

Here’s the way “legitimacy” works. If the Court rejects thousands of years of tradition and rules that States must bless same-sex unions as “marriage”, that’s legitimate and must never, ever, be challenged or questioned. But if the Court says that maybe a baker who holds to the thousand-year-old tradition might just possibly have a legitimate right not to bake a cake for a gay wedding, that’s not legitimate, and it’s just a matter of time before that ruling must be overruled.

traditionalguy said...

The rumor has it that Roberts has long been held hostage by Obama's Gang that used its double secret Spying operation on the SCOTUS Justices. That system called The Hammer was used to catch Robert's using an illegal adoption method for his adopted Russian children, putting them at risk. Hence the pointed warning about Legitimacy.

Bay Area Guy said...

The Left is hooked onto abortion like a crack addict. They would destroy the Court and the Constitution if it meant saving their "right" to abortion.

MayBee said...

h said...
The folklore of the ACA decision is that Chief Justice changed his vote from opposing ACA to supporting ACA because of public commentary or fear that the court would be seen to be political (or something). Greenhouse is concerned that the liberal strategy to similarly nudge Roberts to oppose any weakening of abortion rights can only succeed if it is not seen as a liberal strategy to nudge Roberts. Therefore, she objects to conservative writers pointing out that liberals have this strategy


ha! Yes!

Michael K said...

Robert's using an illegal adoption method for his adopted Russian children,

Yes, I've read that theory too. His behavior in the Obamacare case raises the question, "is he for sale ?"

Dave Begley said...

Why does the Left, Fake News and Linda Greenhouse think that John Roberts - or any other Justice on the Supreme Court - even read their stuff and care what they think about them? I think they have plenty to do as it is. After a day of reading and writing, I bet they go home and watch Wheel of Fortune, Jeopardy and baseball.

MayBee said...

Trump should just state that his next appointee is being nominated to woo Kennedy, like Obama's people said with Elena Kagan. Sure, Kennedy is gone. But is it only genius when Obama tries to use one court member to sway another?

mtrobertslaw said...

Ever since the Roe v. Wade opinion was issued, about 50% of the country did not find its reasoning persuasive. That percentage has not changed and probably has grown. In other words, a large part of the country rejects Roe v. Wade as illegitimate. That is, since the opinion is judged to be irrational, it is unlawful.

Wince said...

I've always thought Roberts justified his Obamacare decision based on the "conservative" notion of giving Congress maximum constitutional "benefit of the doubt", favoring any potential argument (above even actual legislative history/intent) when it came to the Court invalidating a law.

Fernandinande said...

"a meme ...that liberals are using the idea"

What's the difference between a meme and an idea?

Bruce Hayden said...

The thing that is often forgotten about CJ Roberts’ role is that one of his powers is to control who gets to write the opinion whatever side he ends up on. It is subtle, but I think under Roberts, it is fairly powerful. More often than not, it seems, when Roberts jumps ship, he ends up writing the opinion of the court. He doesn’t have full control over the opinion, but he does control it to some extent. Thus, on occasion, the right would lose Kennedy, and Roberts would follow him. Looked bad, until you realize that Roberts, not RBG, would be assigning the opinion. And probably writing it himself, where he could push things rightwards a bit. This might, for example, let him write a very narrow opinion that would be harder to exploit for future leftists judicial power grabs.

Or, maybe my conspiracy theory friend are right, and the Hammer took him out.

Howard said...

The horror. People using free speech to sway the power elite.

Mike Sylwester said...

traditionalguy at 8:19 AM
... Robert's using an illegal adoption method for his adopted Russian children

Roberts used an illegal adoption method to adopt Irish children.

Mike Sylwester said...
This comment has been removed by the author.
Mike Sylwester said...

Justices in the US Supreme Court in 1973 thought that abortion should be legal, at least through the first trimester.

They considered other opinions to be illegitimate.

And so, those justices declared that the Constitution's penumbra and emanations legalized all abortions, at least through the first trimester.

iowan2 said...

I am lost in trying to understand this question of legitimacy. SCOTUS is SCOTUS and regardless their ruling. It is followed. Something like abortion, or the Kelo decision, are so bad, the people, reject the decision, understood that they, the people have power to overrule SCOTUS and pass legislation at the state level to reassert the laws they want to be governed under. This is a long process. Took a while for the people to re-find their power, then elect those to represent their power, then primary those that lied and refused to legislate with the same agenda they got elected on. But the people are learning, by small steps, that federalism is their friend, and they again have a voice in being a self governing citizenry.

Oso Negro said...

@ Michael K - He does not have to be "for sale". He just has to be subject to coercion. If he personally violated laws in adoption of his children and that becomes a headline news story, then neither his personal legitimacy nor that of the Court is enhanced.

Chris N said...

Swamp gas. Greenhouse gas. What’s the price of gas these days?

Michael K said...

He does not have to be "for sale". He just has to be subject to coercion.

That's what I meant. There is a scene in "
Absence of Malice"
where the overzealous prosecutor says, "Is he for sale?" That's a good movie about overzealous prosecutors.

Sebastian said...

"Everyone on the Court is concerned about its "legitimacy,""

Nah. Our prog overlords don't give a damn. They want results. Tony K didn't worry about whether Obergefell harmed the court's legitimacy. He cared about imposing his will.

But progs think conservatives care enough to be vulnerable to legitimacy mongering. Legitimacy is just prog speak for making the other side cave.

You need a legitimacy bullshit tag.

PJ said...

Building on h's accurate comment to formulate an answer to Greenhouse's not-the-question: the reason conservative commentators focus on Roberts to the exclusion of the other conservative Justices in this context is that Roberts is the only conservative Justice who has a reputation, on both sides of the political spectrum (deserved or not), for willingness to abandon his legal judgment in favor of politically tinged abstractions like "legitimacy."

AZ Bob said...

CJ Roberts wrote the travel ban opinion saying the Hawaii court was illegitimate.

Gahrie said...

The most frustrating thing for liberals is that non-lawyer people tend to think that the conservative approach to constitutional interpretation is the right way to do it and that the liberals seem to want to use the courts as an alternative to the legislative process.

How else would you describe it? Where's the conservative Roe? When did the conservatives resort to "emanations" and "penumbras"? Why were the "liberals" forced to write the absurdity in Roe that they did?

Gahrie said...

They're hoping they can turn Roberts into Kennedy.

hombre said...

For leftists it’s all about politics and the template. For leftist jurists it’s all about the template and politics. As long as there are leftists on the Supreme Court it will have no legitimacy Kennedy added to the illegitimacy with his swing votes. Roberts will have the same choice.

You know. How many imaginary “penumbras [can be] formed by [unspecified] emanations” from the Constitution?

John henry said...

Greenhouse, huh? So this is completely on-topic. Greenhouse, Linda/Greenhouse gas, sure, why not.

Just made my car reservation for next week's trip to Glacier. Alamo offers, as an optional extra, "Carbon offsets" for $1.26 per day.

I like the precision of the extra penny. Instead of just $1.25 they have calculated it precisely and it comes to $1.26 per day. Not per mile. The person who just uses the car around Spokane for a week and drives 150 miles pollutes the same as I do (According to Alamo's crack team of scientists and economists), planning to spew carbon all over Washington, Idaho and Montana. Maybe even Canada! Probably 1500 miles or so.

What? You have to ask?

Of course I didn't take the option.

First I've rented from Alamo in a number of years. Never seen this with Avis, my normal rental.

John Henry

AZ Bob said...

They're hoping they can turn Roberts into Kennedy.

It's not necessary. They already have Kavanaugh.

Hippogryph said...

https://en.wikipedia.org/wiki/Greenhouse_effect_(United_States_Supreme_Court)

Has Linda Greenhouse really not heard of the "Greenhouse Effect"? She and other journalists (e.g., Dahlia Lithwick) have been trying to influence the court for a very long time (often through coverage not in the best faith). The "Greenhouse Effect" was a witticism about the fact from Thomas Sowell back in 1992, and a specific reference to Linda Greenhouse. That's well before anyone was talking about "memes", by the way---and it's been in discussion since.

cubanbob said...

The Court may lose it's aura of legitimacy with it's politically driven decision but since it is the final arbiter of the law it can't lose it's legitimacy in actual fact. However individual justices can and have lost their appearance of legitimacy over the years. Roberts is a particularly egregious example. His Obamacare opinion when boiled down comes to this: Congress can't compel individuals to spend their money to buy something they don't want but it can tax them for not buying what Congress wants them to buy. For most people, that's about as much a repudiation of legitimacy as one can have.

Seeing Red said...

Roberts didn’t learn from Obamacare?

They have something on him.

Bay Area Guy said...

Nobody cares what Greenhouse thinks anymore. 30 years ago, Yes, the "Greenhouse Effect" was, indeed, potent, but that was before the internet, when the NYT ruled the roost.

n.n said...

the Constitution's penumbra and emanations

The Twilight Amendment that established the PC (e.g. Pro-Choice) quasi-religion.

Yancey Ward said...

Of course, Roberts is the focus because of the ACA decision and the well-supported story about how he changed his vote on the mandate issue. I, for one, don't believe the stories about why he changed his vote- many of them are conspiratorial. What I do believe, though, is that Roberts was trying to build a consensus decision on states' rights on the Medicaid expansion, and traded the vote on the mandate to get two of the liberal justices to concur with the decision striking down the Medicaid expansion mandate on the states. Now, I consider such horse-trading a bit corrupt, but am not naive enough to not understand this happens in politics- and, yes, the Court is a political animal.

Chuck said...

David French is not just doing something right when he is simultaneously pissing off both Linda Greenhouse and the Trump cultists at “First Things.”

He’s doing it ALL right.

Skippy Tisdale said...

""Legitimacy" is a category of rhetoric, and everyone uses it. "

So does that make its use deeply legitimate?

Gahrie said...

David French is the captain of the S.S. GOP Establishment going down with the ship.

Real American said...

it's cuz he's the CJ. It's not called the Thomas Court or the Ginsburg Court. It's called the Roberts Court. His name will be attached to it forever, which is why he shouldn't uphold the ridiculous notion that baby killing is a constitutional right.

Skippy Tisdale said...

"After a day of reading and writing, I bet they go home and watch Wheel of Fortune, Jeopardy and baseball."

I'd have made a great judge!

Skippy Tisdale said...

"What's the difference between a meme and an idea?"

One person can have an idea. A meme takes at least two.

Not an oldster. said...

If Justice Roberts adopted his children illegally under international law, the media will bring that story out before he is allowed to participate in an abortion decision.

No one is above the law.

Michael K said...

He’s doing it ALL right.

French is doing just great everybody agrees.

Having lost a seemingly internecine war against Sohrab Ahmari and First Things over the future of conservatism, the mag’s once-trusted writers are still attempting to wage war (think Hiroo Onoda) while at the simultaneously claiming to have never tried to fashion an ism around their lead writers.

French was the primary assailant of Ahmari and the First Things manifesto that set the tone for a debate on the right that French now claims he wasn’t even trying to win anyway, or something.

Writing on June 3rd, Kevin Williamson insisted:

“I have known David French for some time. I like him a lot, and admire his work and the way he has lived his life. But it was news to me that there is such a thing as David French-ism. It might have been news to David French, too. I suspect it was.”

French was the primary assailant of Ahmari and the First Things manifesto that set the tone for a debate on the right that French now claims he wasn’t even trying to win anyway, or something.

That’s what “stone cold losers” always do. “I didn’t want her number, anyway!”


Not an oldster. said...

The judges watch ballgames and gameshows? It is what the law clerks are reading and writing and watching that matters. Greenhouse likely knows this.

James K said...

Why does the Left, Fake News and Linda Greenhouse think that John Roberts - or any other Justice on the Supreme Court - even read their stuff and care what they think about them?

Because of his switcheroo on Obamacare. There's no other rationale.

David French is the captain of the S.S. GOP Establishment going down with the ship.

Per Ace of Spades, I believe the vessel is the S.S. Cuck. With Chuck as 1st Mate.

rcocean said...

And I'm also "Noticing" a meme amoung the Leftists like Greenhouse. Y'ever notice (andy Rooney voice) how when the Left decides to attack the right, its just reported without any partisan label, like "House Committee subpoenas Trump" but when the Right attacks the Left, its always reported as the right attacking the Left? As in, "Republicans hope to score political gains with Subpoena"?

People like Greenhouse would always do this. It's always, "Right wing Thomas says X" but never "Left-wing Ginsburg says Y". Always: "SCOTUS upholds Liberal Law" against "Conservative Justices strike down liberal law, Ginsberg dissents".

rcocean said...

IRC, Roberts was hailed as a great pick by all the moderates, unlike Alioto. There was a reason for that.

According to a recent book, Bush didn't want appoint Scalia Chief Justice to replace Rehnquist because he "didn't want to fight the Democrats".

rcocean said...

Good God, is Kevin Willamson still alive? I thought he dropped off the earth, when his liberal buddy Goldberg fired him from "The Atlantic".

David French is a complete fraud. An Elmer Gantry Neo-con. Real War heroes don't spend all their time reminding everyone "As a war Veteran..." And real Christians, don't spent all their time telling you "As a Christian...". And people who say they are color bling don't spend all their time telling you "As the parent of an adopted Black child..."

French can't write a single column without implying that anyone who criticizes him -FROM THE RIGHT - hates war veterans, hates black kids, or hates Christians. Complete FAKE CON.


Bilwick said...

rcocean, I believe someone did a study of that and found that the "liberal" Hive's MSM invariably show Republicans or conservatives "attacking," "fighting," etc.--I suppose because the Hive's opposition is seen as intrinsically belligerent, while "liberals" are tranquil and peaceful folks. (Especially when they're pointing the State's guns at you.)

Jim at said...

I've always thought Roberts justified his Obamacare decision based on the "conservative" notion of giving Congress maximum constitutional "benefit of the doubt", favoring any potential argument (above even actual legislative history/intent) when it came to the Court invalidating a law.

OK. So why didn't he rule that way originally? What caused him to change?

wildswan said...

Althouse said:
"It's not a new subject. It's a big, long, old conversation." I really like that.


As for controlling a Justice through threats to take away his children, I believe the left would do a thing like that. But did they? And, anyhow, these "children" are now sixteen. This is a threat that time had diminished, if it was ever made. Meanwhile Justice Roberts is still on the court and probably no friend of the left if they actually did that.

Achilles said...

"Linda Greenhouse has noticed "a meme in conservative media" that liberals are using the idea of the Supreme Court's "legitimacy" to flip John Roberts to the liberal side."


Hah! Obvious stupidity.

Roberts isn't doing any "flipping." He was always on the globalists side. Bush and Bush made a show of nominating "Conservative" judges. Bush 1 didn't really even make a show. He gave us Souter for god's sake.

Roberts will betray the Constitution and "Conservatives" over and over and over and over.

Everyone in DC knows that is why Bush 2 put him there. His job was to keep the Supreme court under globalist control from the start.

Roberts found a reason to rule the constitution allowed the federal government to force individual citizens to buy a product from a 3rd party.

Roberts is a fraud and a despicable human being just like the other god-priests that refuse to accept the plain text of the constitution.

Achilles said...

Michael K said...
Robert's using an illegal adoption method for his adopted Russian children,

Yes, I've read that theory too. His behavior in the Obamacare case raises the question, "is he for sale ?"

No.

Just like Romney and the rest, Roberts has always been on the other side.

Just like French and Kristol and the rest of the cuck wing of the globalist party he pretends to be one thing while he is another. He was born into the elite, went to all of the elite schools and hung out with all of the elite people and goes to all of the elite parties.

The only difference between Roberts and Kagan is who Roberts is supposed to lie to is different than who Kagan is supposed to lie to.

Not an oldster. said...

Was the threat that his children would be removed? Or he would be removed, unfit to rule on a reproductive case if he illegally procured his own children?

The threat is to expose the truth, not to nab his children. If he knowingly participated in an illegal private adoption scheme, he needs to step down.

DeepRunner said...

John Roberts is a wild card. If he is worried about the legitimacy of the Court, it is likely associated with being worried about his own legacy and place in history.

Beyond that, the Court should not be a weapon for one side or the other. Alas, those days are gone and might never have existed. The K hearings proved that so far, anyway, the only thing libs find "unconstitutional" are opinions they don't like.