CHIEF JUSTICE ROBERTS, IS HE DELUSIONAL?

PTKAP: 18 Novemberr 2015

Chief Justice Roberts is reputed to believe that he is a model of judicial restraint. This rumor is strongly supported by his dissent in the Obergefell case, the case that accorded constitutional protection to same-sex marriages.

In his 29-page dissent in that case, the Chief Justice repeatedly excoriated the majority for, in his words, legislating from the bench in lieu of interpreting the words of the Constitution:

“Today..the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. …Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law…

The majority’s decision is an act of will, not legal judg­ment. The right it announces has no basis in the Consti­tution or this Court’s precedent. The majority…openly (relies)  on its desire to remake society according to its own “new insight” into the “nature of injustice…

The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments…. that we exercise humility and restraint in deciding cases according to the Constitution and law…

If you are among the many Americans…who favor expanding same-sex mar­riage, by all means celebrate today’s decision…But do not celebrate the Constitution. It had nothing to do with it."

The Constitution is silent on the question of same-sex marriages. But the Fourteenth Amendment states:

“…nor shall any State …deny to any person within its jurisdiction the equal protection of the laws.”

Marriage in the United States is a legal concept and the law accords married couples hundreds of advantages over non-married couples.

Same-sex couples who are within the jurisdiction of a state but are denied the legal state of marriage would be denied these advantages. They would not receive “equal protection of the laws”. Agree with it or not, the decision in Obergefell had a clear constitutional anchor.

Thus, the Chief Justice’s dissent poses a dilemma. Since the case had a clear constitutional anchor, on what basis does he judge the decision of the five-justice majority to constitute impermissible judicial legislation?  

To test his hypothesis, let us look at two recent cases in which a very different five-justice majority (only  Justice Kennedy participated in both groups) led by the Chief Justice, cut the heart out of the Voting Rights Act (VRA); an act that theretofore had been the most successful civil rights legislation in the history of the American republic.

The VRA was enacted in 1965. Because it had been found that prohibiting specific devices, such as literacy tests, designed to discourage voting by African Americans, or other minority groups, merely led to the creation of new devices, the VGA employed a pre-clearance mechanism.

States, or subdivisions of states, that had a history of such discrimination became “covered jurisdictions” and could not adopt new voting rules without obtaining a preclearance from the Justice Department or from a Federal appeals court.

In July of 2006 the House passed the latest extension of the VRA by a vote of 390 to 33 and the Senate passed it by a vote of 98 to 0, indicating that even the senators from nearly all of the covered states voted for the extension.

President Bush signed the VRA extension on July 27, 2006 calling it:

 “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.”

That should have been, but was not, the end of the story. The beginning of the end occurred in 2009, when the Supreme Court decided the case of a Texas district that had sued to get the preclearance requirement declared unconstitutional (the Northwest Austin case).  

The case was decided without reaching the constitutional issue. Thus it was unnecessary for the Supreme Court to comment on that issue.

Unnecessary, but not prohibited. Having decided the case in favor of the Texas district on other grounds, the Chief Justice chose to add the following comment:

"...the Act imposes current burdens and must be justified by urrent needs...The Act also differentiates between the States, despite our historic tradition that all the States enjoy 'equal sovereignty'...a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets."

This was nothing less than an open invitation, and a road map, to the "covered jurisdictions" to find one among them to attack the VRA on the suggested "constitutional" grounds.

The attack was not long in coming, although it took a while to get back to the Supreme Court. The chosen attacker was Shelby County Alabama, an acknowledged sinner and thus ineligible to escape the preclearance requirement through the bailout provisions.

It arrived at the Supreme Court in time for a 2013 decision. The Chief Justice, with the support of the other four conservative justices, honored his 2009 promise. He precisely followed the gratuitous 2009 road map he had inserted into the Northwest Austin opinion, cited that case as if it were a precedent on the constitutional issue, which it decidedly was not, and declared the list of covered jurisdictions to be unconstitutional.

No, that is not a typo! He did not declare any portion of the VRA to be unconstitutional, only the list of covered jurisdictions.

Although  the House and Senate had conducted extensive hearings and concluded that that list, while some forty years old, was still a valid classification and would continue to be effective, and the President enthusiastically signed the legislation, the Chief Justice, and his four colleagues,  disagreed.

Stripped of its flowery locutions, the Chief Justice's decision was a simple statement that the Congress and the President got it wrong. That the covered jurisdictions no longer needed to be subject to preclearance. He stated that:

"There is no denying… that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions."

The Chief Justice was saying that because he and his four conservative colleagues considered the VRA list of Covered Jurisdictions to be bad legislation they could cancel it. In plain language that they could veto it, overriding the overwhelming bi-partisan vote in the Congress and the enthusiastic signature by the President.

Thus, the five justices who were responsible for creating the hugely harmful Super Pacs (in the 2009 Citizens United case) have added to their accomplishments the creation of the judicial "Super Veto", something that directly contradicts Article 1(7) of the Constitution which accords the veto power only to the President and then subject to override by the Congress.

In the absence of any provision in the Constitution that he could cite to support this extraordinary action, the Chief Justice cited "our historic tradition that all the 'states enjoy 'equal sovereignty' ".  But, as Justice Ginsburg noted in her dissent, there is no such historic tradition in the context stated by the Chief Justice. Even if there were an "historic tradition" cannot override the express words of the Constitution.

The short answer is that the Chief Justice minted a slogan whose words do not appear in any provision of the Constitution. He then baldly asserted that a violation of his slogan equaled a violation of the Constitution and that that gave the court a right to nullify the law!

The Chief Justice was demonstrably wrong in characterizing the majority ruling in Obvergefell as judicial legislation, and demonstrably wrong in his obvious view that his activities in Shelby County eviscerating the VRA were not a virtually undisguised usurpation of the presidential veto power. This from a chief justice who professes to believe that:

“…courts are not concerned with the wisdom or policy of legislation.”

The obvious conclusion is that the Chief Justice is delusional.

These events call to mind Thomas Jefferson's 1820 warning:

" to consider the judges as the ultimate arbiters of all constitutional questions; (would be) a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

ADDENDUM

The question whether the Chief Justice was correct in stating that the VRA list of covered jurisdictions was deeply flawed is, at best, tangential to the question whether he is delusional. However, it is worth noting that he clearly was wrong on this point as well.  

The Brennan Center For Justice of New York University’s law school examined the consequences of the ruling against the preclearance process  and reports that in the first year since Shelby County, most of the feared consequences had come to pass — including attempts by the former “covered jurisdictions” to revive voting changes that were blocked as discriminatory, jurisdictions moving forward with voting changes previously deterred, and the implementation of new discriminatory voting restrictions.

oOo

PTKAP'S other blogs concerning the Roberts court, gun control and taxation are listed on:ptkapsblogindex.blogspot.com