Tag: John Roberts

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The Dreaded Judge Roberts

For a man with such a reputation, John Roberts took a somewhat ridiculous position at the Senate confirmation hearings on his appointment as Chief Justice of the Supreme Court.

Roberts basically said that he had no over-arching judicial policy. He was a pragmatist. He simply used the methods most appropriate to the case at hand. Therefore, he is unbiased.

On the contrary, by refusing to espouse a particular judicial philosophy, be it “originalist” or “constructionist” or “majoritarian” or whatever, he keeps his options open. If a particular outcome would favor the president’s ability to use torture on those …. what are they? Prisoners of war? No– Bush denies that. Kidnap victims? Whatever– in Guantanamo Bay, then he’ll use it. If he needs a different judicial philosophy to justify arresting 12-year-old girls with French fries, he’ll use that. And if he needs a third philosophy to justify granting gun manufacturers immunity from lawsuits, by golly, he’ll use that. The outcome is always the same: whatever favours conservative political and social policy.

If I were a Senator on the Judiciary Committee, I would have asked this question. Sir, you deny that you have an ideology or a particular philosophical outlook on issues that might come before the Supreme Court. You also deny that it is possible for you to discuss how or why you might rule one way or the other on any particular issue that comes before the court. If you were me, what exactly is it that you would like to know about a candidate for the Supreme Court before voting in favour of his appointment. And how, given that you won’t answer any questions about how you would rule on anything, would we prevent ourselves from appointing a complete idiot to the position?

You mean like Scalia? Or Thomas? Or Rehnquist?

If I had been on the Senate…   this what I would have asked Judge Roberts:

Have you had any contact at all with any poor people in your life?

Given the large number of convictions that have been reversed through DNA testing in the past few years, how can you justify making judgments that make it more difficult– not less– for review of capital cases?

Please describe, if you can, how you made a judgment in favor of “the little guy” at some point or another in your career. You can’t? Not one? Oh– because the “little guy” has never, ever been right in any of the cases you’ve heard…

What can we tell prisoners in Guantanamo Bay to make them feel less upset about being tortured by the good guys, the light of the world, the hope for the future: America?

If you ever travel abroad somewhere, try to imagine something you think you might learn from other people in different cultures? All right– never mind. If you went to Disney Land and it snowed….

I can’t wait to see how conservative Republicans react when the next Democratic president nominates someone to the Supreme Court.

I am sure they will insist that the nominee cannot be asked any specific questions about his or her views on affirmative action, gay marriage, or physician-assisted suicide. No no no. That wouldn’t be right.

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Maybe John Roberts

I’ll admit, I was fooled at first.

John Roberts looks like a reasonable man. Oh, does he look reasonable. Read his opinions. He is the model of a modern enlightened logical jurist. Of course, his rulings always end up in favor of the corporations, the police, and the rich and powerful. But the lovely words he uses to get there!

He may be an intellectual giant compared to Clarence Thomas, but he will probably rule exactly the same way on every issue.

Roberts has stated to the Senate Judiciary Committee that he is “no ideologue”. That is about as close to perjury as you get. No– that is perjury. Roberts is either so seriously deluded that he cannot be considered fit for office, or a liar. I say, he is a liar.

[2022-05 Lawrence Tribe has done an excellent piece illustrating, among other things, how a Justice of the Supreme Court could earnestly believe that the mental framework and cultural affiliation of a justice could lead them to conclude that specific rulings on particular issues are “objective” because they congenial to that framework, when we know that the framework itself is the product of implicit bias.]

Mr. Roberts is an extremist, a radical, an authoritarian. Here is the best evidence, aside from all the rulings– I mean, all of his rulings– in favor of corporations and the police: Mr. Roberts was on a panel of judges that heard an appeal of the notorious french fry case from the city of Washington, Hedgepeth vs. Washington.

A 12-year-old girl entered a subway station with French fries. Contrary to the law, she ate a fry. A policeman saw her do this and arrested her. He made her put down the French fry and her backpack and lay down on her stomach. Then he hand-cuffed her.

We are talking about a 12-year-old girl here. Eating a French fry.  A big, burly, powerful policeman.   Handcuffs. I am not making this up.

We’re talking about an psycho adult police officer, who was supposedly trained in something or another. I mean that– psycho. Do you think it’s normal for an adult male to want to handcuff a 12-year-old girl for eating a French fry? Was he trained to assume that a 12-year-old girl could threaten him physically? Does a normal adult male make a strange 12-year-old girl lay face down on the floor while he handcuffs her so she won’t hurt him and flea from the charge of eating a french fry on a subway platform?

Just how many fugitive french fry eaters are there at any given time?

If you dare to defend Judge Roberts’ ruling in this case, it would be as hard for me to argue with you and it would be for me to argue against a Mormon or Scientologist or faith-healer or member of the NRA. You’ve lost your mind.

In detail: the ingenious Judge Roberts ruled that since the interests of the state are served by discouraging juvenile delinquency, the actions of the police were justified. The government may go around and force little girls to lay down on the pavement so they can be handcuffed for eating French fries on subway platforms. That might not seem nice, but that’s just too bad.

[That’s like saying that since the interests of the state are served by discouraging obesity the government may ban fast food outlets from serving French fries. You see, Roberts said that the state was interested in “discouraging juvenile delinquency”. He didn’t say that there was no constitutional requirement to arrest juvenile delinquents– unless it is is in the interests of the state, just as the constitution doesn’t require the government to fight obesity… unless…a state decides that can. March 2011]

There is no exception for common sense, sanity, reasonableness, humanity, compassion, or having a brain. It makes no difference that the girl was 12-years-old. It makes no difference that we live on a planet called Earth that is round and that revolves around the sun. Facts are facts.

That is the world Judge Roberts inhabits. That is a world that makes sense to him because the man, for all his cool, calm, detached manners, has no sensibility at all. He has absolutely no common sense, no humanity, and probably no human feeling. This is a man who grew up in a privileged, insulated environment, and who never in his entire life came face-to-face with the gritty reality of street crime and poverty. He clerked for rich white judges appointed by rich white politicians funded by rich white corporations. When he is confronted by a case of a poor black man who was beaten up by the police after he robbed someone because his family was starving– you never know, might happen–, he’s going to think, in the back of his tiny little brain, “why didn’t he just buy some food?”

You won’t find anything in his biography about military service, volunteerism, missionary activities, or travels to exotic locales. This is a guy who lives in Republican gingerbread houses with gingerbread nannies and gingerbread rules. Twelve-year old girls eating French fries bring disorder and confusion. But Roberts knows better than to say “we like locking up 12-year-old girls for eating French fries.” He can’t say that– it’s too bald and too real. So he says, twelve-year-old girls can become delinquents. Delinquents must be locked up.

Then he says, I’m sorry. I’m so so sorry. I’m really very, very sorry. But the 12-year-old girl must be locked up in a police car and taken downtown and fingerprinted and photographed and detained. That is the kind of thing that is necessary to sustain Judge Roberts’ gingerbread world.

And all they talk about is abortion and voting rights and gay marriage. Even the Democrats.

The Republicans have so skewed the political debate in the U.S. that nobody even questioned the fact that Bush overtly declared that he was going to load the court with conservative partisans, as if that is how appointments to the Supreme Court should be made.

The fact is, abortion (and gun rights) have always been a red herring for conservative politics which is only and ever concerned with preserving the status, wealth, and privilege of propertied white men.

It’s a wedge issue.  The most convincing evidence of this?  Compare the rulings of the same judges (anti-abortion, pro-gun, pro-patriotism) with their rulings on corporate law, workers rights, unions, pensions, investment funds, corporate liability, and so on.  They are absolutely uniform.  Those are the rulings that really matter to Mitch McConnell and his fellow Republican toadstools.

It’s too late. Roberts will be confirmed. He won’t be the worst justice on the Supreme Court, but that’s only because of Clarence Thomas and Antonin Scalia.

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Maybe Not John Roberts

I generally like Bush’s nominee to the Supreme Court. John Roberts is smart, erudite, disciplined, fair, and witty. But I don’t think I’d vote for him. I’d vote for him in five years, after President Hillary Clinton has nominated a couple of moderates ahead of him. I think Roberts would be an excellent right wing justice. He is a heck of a lot smarter than Thomas, and he is not psychotic like Scalia, and he is not even quite as ideological as Rehnquist.

But he is still an ideologue. He just arrives at his ideology through poetry instead of jingoism.

Judge John Roberts is known to admire the views of Henry J. Friendly, who was a judge on the U.S. Court of Appeals in New York, where Roberts served as a law clerk after he graduated from Harvard. And he admired Friendly’s views of the Warren Court, in particular, the way the Warren court made itself available to criminals who claimed that state courts had not treated them fairly. Friendly felt that this was wasting everyone’s time. Friendly– and Roberts–believed that the long delay between a sentence of death and the actual execution of the criminal diminished the effectiveness of capital punishment.

The play on this issue is incredibly instructive. If you read some of Roberts’ opinions on some of these issues, you might think he is reasonable, assured, wise and just. You might believe he weighs all the evidence and comes to a conclusion based only and purely on the merits. And in a just world, he really might be wise, reasonable, and just.

But you cannot extract Robert’s views on the law from the political realities of America in the 1970’s. We are talking about Wallace’s Alabama. We’re talking about Texas, Louisiana, Georgia, Mississippi. We’re talking, for example, about a black woman named Lena Baker being sentenced to death and executed in 1945 for killing a white man after he repeatedly assaulted her. An all-white, all male jury sentenced her to death. Roberts isn’t troubled by it.

Roberts appears to hold the position that, since the woman is not innocent (nobody disagrees that she killed the man), the federal judiciary should not even look at the issue of whether or not she should be electrocuted for the crime because federal courts should not intrude on state jurisdictions. That’s the real-world application of Roberts judicial philosophy. In this case, we don’t “intrude” because…. well, figure it out.

So, Mr. Roberts, you would have permitted the execution of Ms. Baker, and, presumably, you would have rejected Brown vs. Board of Education. And, if I am not mistaken, Texas would still be able to arrest sodomites today.

If fact, Texas can. The Supreme Court may not be as powerful as you think. Texas can throw sodomites in jail, and if they have the money, and if they have good lawyers, and if they have 10 years, they could probably win an appeal.

There’s more…

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Police State

The disparity between rhetoric and reality is now a yawning chasm. America never ceases, for a second, to rhapsodize about freedom and liberty and justice and the American Way. And then, without the slightest inkling of opposition or dissent, casually renews the Patriot Act, making it legal for the government to spy on whoever it wants whenever it wants with impunity, tap your phones, read your mail, or search your home– without even having to tell you that you are under suspicion, without even having to tell a judge.

Nobody knows which way Judge Roberts is going to vote on abortion or environmental regulations (well, actually, we do): this guy has already ruled in favor of the government’s right to hold people prisoner for as long as they like simply by designating them “prisoners of war”.

And Americans run the flag up the pole and salute and sing their anthems, completely unconcerned.

And the police continue to flog the illusion that these police state provisions have helped them catch terrorists. They don’t have a single real terrorist (just a gaggle of impulsive youths who were entrapped) to show for it, but that hasn’t even slowed them down: we need to spy on people to keep America safe.

When this measure was introduced, it included “sunset provisions”, which everyone happily pronounced would ensure that this glaring intrusion on everyone’s civil rights would expire in four years. Just as I always expected, the Republicans are now trying to make those provisions permanent. That is ghastly. That is just maybe the most outrageous act by an outrageous congress. And the Democrats, petrified of being portrayed as intelligent and wise, are rolling over like sheep.

[Last minute correction: most Democrats voted against the bill. That’s actually interesting, because the perception used to be that you could not win re-election if your opponent could accuse you of a lack of enthusiasm for bombing or killing or suppressing civil liberties.]

Why hasn’t a single prominent politician dared to stand up and announce he will oppose government use of torture against prisoners, no matter what the charges? (Actually, John McCain and some other senators have.) Do people really think that that is unpalatable?

I suspect that if, say, John Edwards, made it a prominent feature of a campaign (an early start on 2008), it would set off all kinds of alarms in the White House. Right now, Bush can nudge, nudge, wink, wink, declare that of course he’s opposed to torture, while allowing his staff and officials to carry it out. But if someone prominent were to make it an issue, I have a feeling that Karl Rove would issue immediate instructions: no more torture. It just don’t look good defending it in public, or answering reporters questions — “Mr. Edwards says that he would fire any official involved in any kind of torture– would you, Mr. Bush?”

Then go ahead, George, make a joke about it.

Russ Feingold was the only senator to vote against the Patriot Act. He deserves the medal of freedom but, of course, he’ll never get one.

In fairness, the Senate’s version of the same bill is considerably less draconian. But it’s rather pathetic that anyone would see this version as “enlightened”. We’ll allow the rack, but not the red-hot pokers to our civil liberties.

Added October 5: Judge Roberts, in his hearings before the Senate, declared that the President has the power to order the torture of prisoners, if Congress was “supportive”.

That’s a strange reading. Why would a Supreme Court Justice care if Congress was “supportive” of an unconstitutional act?

Judge Roberts, should the President arrest witches? If Congress is “supportive”…

What Mr. Roberts has really said is that torture is “constitutional” (since a mere Act of Congress could allow it).  I would not be alone in vehemently asserting that it is NOT.