Answering John Roberts Beliefs of Innocence
run75441 | September 13, 2022 6:30 am
I had read Dan's post, "Total Hypocrisy, Franken Pushed Back on GOP" – Angry Bear (angrybearblog.com). Was kind of wondering if there was an answer to John Roberts. Roberts beliefs are they are innocent, alas how could their decisions be influenced by political beliefs, especially the political influences appointing them, the Federalist Society, their own beliefs, politics, etc. Did I miss something?
As one commenter said, appointees to SCOTUS were never filibustered in the past. Appointments and processes became political, having changed dramatically since Gingrich.
I am pulling from one opinion from a well known attorney, Erwin Chemerinsky. Here is what he said about SCOTUS:
Its decisions always have been and always will be a product of the identity of those on the bench. For example, from the 1890s until 1936, the court had a very conservative majority and declared unconstitutional over 200 federal, state, and local laws protecting workers and consumers. Only once in American history, during the Warren Court, from 1954-1969, and especially from 1962-1969, was there a liberal majority on the high court and its decisions were progressive in a way never otherwise seen in American history.
Roberts Thinks Differently than Does Erwin
Justice John Roberts; "People can say what they want, simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court."
Constitutional Attorney Erwin Chemerinsky: "It is unclear what overruling Roe will mean for the court and its legitimacy. A Gallup poll in fall 2021 revealed the court having its lowest approval ratings in history, 40% approval and 53% disapproval. A new Gallup poll shows that only 25% of the American people have confidence in the Supreme Court, also a historic low."
The question?
CNN Political Commentator: Alice Stewart There is no protected right to Abortion listed in the Constitution.
Ms. Stewart's remark cause me to ask; Does there need to be a bullet point in the Constitution calling out the rights of women to decide their outcome? Is it not self-evident?
Erwin Chemerinsky: "Roe v. Wade was overruled not because of anything about its reasoning or any method of judicial interpretation. It was because Donald Trump won the presidency in 2016 and was able to appoint three justices to fulfill his promise to put on the court individuals who would end abortion rights."
Myself: How was trump empowered? McConnell blocked Obama from appointing Garland months before an election. McConnell claiming it was too soon before an election and the next president should decide. Neil Gorsuch became Associate Justice of the Supreme Court shortly after the election. Amy Barrett was appointed on October 26, 2020 less than two weeks before the next presidential election. McConnell, Graham, and Republicans demonstrate a lack of integrity.
Go Figure?
Alice Stewart claimed it was historical precedent three-plus minutes into the clip. Al Franken repeatedly asked Stewart to cite an example of precedent showing nominations were not made before elections as she claimed. Stewart could not do so, because none existed. So, Republicans make things up and Democrat and voters fail. Back to my point.
Is Roberts right, does a court opinion not impact the legitimacy of the court?
This is where I look to Constitutional Attorney and expert Erwin Chemerinsky again.
In Dobb's v. Jackson Women's Health Organization, the court overruled a half-century of decisions protecting a constitutional right of women to choose whether to end their pregnancies. The decision must be understood as entirely about the conservative desire to end abortion rights and not about constitutional principles or judicial methodology.
There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court. Its decisions always have been and always will be a product of the identity of those on the bench. For example, from the 1890s until 1936, the court had a very conservative majority and declared unconstitutional over 200 federal, state, and local laws protecting workers and consumers. Only once in American history, during the Warren Court, from 1954-1969, and especially from 1962-1969, was there a liberal majority on the high court and its decisions were progressive in a way never otherwise seen in American history.
Roe v. Wade was overruled not because of anything about its reasoning or any method of judicial interpretation but because Donald Trump won the presidency in 2016 and was able to appoint three justices to fulfill his promise to put on the court individuals who would end abortion rights.
These nominees had no compunction about lying during their confirmation hearings and pledging fidelity to precedent, and all have said that Roe is well-established precedent. They knew that once on the bench they could do what they want. Everyone knows that if Hillary Clinton had won in 2016 and picked three justices, Roe would have been safe for decades to come.
Justice Samuel Alito's majority opinion in Dobbs focuses on the need to leave the issue of abortion to the political process. But there was no deference to the political process earlier this week when the conservatives on the court declared unconstitutional a New York law limiting concealed weapons that had been on the books since 1911 or struck down a Maine law that limited financial aid to religious schools. This conservative court defers to the political process when it agrees with its results, as it does with laws prohibiting abortions, but the deference vanishes when the conservative justices dislike the states laws.
Precedent and the principle of stare decisis are supposed to limit judicial discretion and provide stability to the law. But time and again, as in this decision, the conservative justices are willing to overrule the precedents they dislike.
Which brings us back to the personal preferences politically and personally of the judges assigned to the court by Congress without regard for their religious beliefs and political influences such as the Federalist Society.
"Erwin Chemerinsky commentary: Ending Roe is a pure exercise of Republican power" – West Central Tribune
"John Roberts Decries Attacks on Supreme Court's 'Legitimacy" (bloomberglaw.com)
Total Hypocrisy, Franken Pushed Back on GOP – Angry Bear (angrybearblog.com)
Tags: Erwin Chemerinsky, John Roberts, Roe V Wade, SCOTUS Comments (13) | Digg Facebook Twitter |
Eric377 says:
Not sure why Senate Democrats who voted on Barrett's nomination don't have the same integrity issue that you point at Republicans over. They participated fully in the Senate's confirmation process. Darn few (if any) responded to it by refusing to speak about then Judge Barrett and did not go to hearings or vote on the nomination. They acted as if it were a legitimate nomination in all the critical particulars.
EMichael says:
" What you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul."
run75441 says:
Oh Eric . . .
"Senate Democrats who voted on Barrett's nomination don't have the same integrity issue"
What did they believe of Amy and the other two appointees at the time of nomination? What were they told be each appointee?
Come on now, fess up . . .
Also and mostly, Democrats are allowed to vote independently of a Svengali Senate leader or presidential insurrectionist. Republicans are on a string and controlled with the exception of a few.
Eric0377 says:
So why did you include any mention of Barrett's confirmation as some kind of integrity issue for anyone? There was a clear vacancy, the President nominated someone to fill it and the full Senate (Republicans and Democrats) exercised their advise and consent role. I get being outraged over the Garland nomination, but the record is clear from the actions taken that Senate Democrats performed their duties as if the Barrett nomination was legitimate. In any case, what does the nominating and confirmation process of specific justices have to do with assessing case decisions?
Ok Eric . . .
What did the appointees tell Dems, Manchin, Collins, etc.? Dis they take Amy and the other two appointees at their word at the time of nomination? What did they tell each Senator?
Joel says:
"McConnell, Graham, and Republicans demonstrate a lack of integrity."
I think the phrase you're looking for here is "they lied."
Jackd says:
The truth, as Chemerinsky implies, is that the court is a political institution. The "originalist" objection that something or other isn't specifically provided for in the constitutional language always fails to discuss the fact that judicial review of constitutionality of various pieces of legislation or legal practice isn't specifically provided for either. Ignoring specific language such as that in the 2d Amendment regarding the need for militias is obviously political and not based on specific language. The court's "legitimacy" depends on public support of its rulings whether Justice Roberts likes it or not. As Mr. Dooley sagely observed, "Th' Court follows th' ilection returns."
Ron (RC) Weakley (A.K.A., Darryl For A While At EV) says:
Erwin Chemerinsky is a great source of realistic analysis of legal history to which one should look. Nothing that I can improve on honest realism such as that.
Ken Melvin says:
https://www.npr.org/2022/09/13/1122536384/trump-lawyers-jones-day-servants-of-the-damned-david-enrich
Shortly after Trump was elected, Mitch McConnell gave some advice to Don McGahn. The advice was that instead of relying on a committee at the White House to debate and pick nominees for the Supreme Court and other federal courts, McConnell's advice was, "Look, you should get Trump's permission to just do this by yourself. You alone should have the power to pick the judges that Trump will nominate." McGahn liked the sound of that. He proposed it to Trump and Trump when he offered McGahn, the job of White House counsel, readily agreed to this. And so McGahn, very quickly, before Trump even was sworn in as president, all of a sudden was sitting on this enormous power that was really quite unusual historically. And he was the one who would be picking the people that Trump nominated to all sorts of federal courts.
Fred C. Dobbs says:
John Roberts: 'Butter would not melt in his mouth' as the saying goes.
He would have us believe, it seems, that the modern-day Federalists are apolitical and objective, when that is clearly not the case, unless the GOP is apolitical and objective.
Instead, he insists on strict disingenuousness.
coberly says:
Eric377
In this case I have to agree with EMichael. It's not that I disagree with you politically, it's that I can find no evidence of reason in your argument: McConnell refused to consider Garland because "too close to the election," then pushed through Barrett even closer to the election. Pretty clear evidence of dishonesty.
Nor can I find any semblance of reason in your citation of Democrat failures to stop this: they had no power under the Constitution to stop it. Something that Al Gore pointed out after the Supreme Court stole his election from him. The problem with stopping the coup-in-progress is that it's hard to see how to do it without violating the Constitution ourselves. It's not that the Constitution gives the Supreme Court the power to do what it does [it doesn't], but that it doesn't give us the power to stop them from doing it without creating, ourselves, a state of civil war. I think, i hope, that the D's are still trying to get through this whole thing without breaking the "normal" rules of the democracy.
Your reasoning is of the form "The moon is made of green cheese, therefore Trump is a great leader."
You give him too much credit for his reasoning. He's 20 fries short of a Happy Meal.