John Roberts: An Enemy of the Rule of Law
John Roberts: An Enemy of the Rule of Law
The deranged Chief Justice just doesn’t care.
By Matthew Vadum
How twisted is Chief Justice John Roberts?
Let us count the ways.
The conservative movement worked unceasingly for almost a half-century to undo Roe v. Wade, the 7-2 Supreme Court ruling that shocked the world by abruptly legalizing abortion from coast to coast in 1973.
Yet Roberts, who was nominated by a conservative president, chose not to take part in overturning the precedent that provided the angry Left with a power base and endless fundraising opportunities as it poisoned American politics for generations. Roe seeped into everything and the abortion establishment vilified anyone seeking even the slightest rollback. Out of a sense of left-wing solidarity, labor unions, community organizers, civil rights campaigners, open-borders advocates, Antifa, and environmentalists all mobilized whenever abortion rights created by Roe were deemed under threat. It gave these sad, ornery people a reason for living.
Mind you, the court’s June 24 decision (pdf) in Dobbs v. Jackson Women’s Health Organization, has been – surprise, surprise — grotesquely mischaracterized by the Left.
Read the opinion and you’ll see it is not actually a conservative, right-wing, or Republican ruling, although people who identify as these things are praising it.
It takes no position on the morality of abortion. It does not ban it. It merely recognizes at long last that the purported right to abortion is nowhere to be found in the U.S. Constitution. It corrects the error of the Roe court and embraces federalism by returning the authority to regulate abortion to the states where it belongs.
That’s right – it is a pro-federalism decision.
More importantly, it is a quintessentially American decision.
In light of Dobbs, some states will crack down on abortion; others will not. How abortion will be regulated will be left, as it should be, to small-D democratic processes in the 50 states. Americans will vote and state legislatures will make new laws. Some will disagree with these laws but they will at least be politically legitimate because they will be sanctioned by the Americans residing in the various states. And the lawsuits – oh the multiplicity of lawsuits — it will spawn as abortion and the issues surrounding it – access, parental and marital rights, best practices, health insurance coverage, government subsidies, fetal viability, medical ethics and conscientious objection — get litigated over and over again and resolved in jurisdictions across the fruited plain. No longer will a crude, poorly reasoned, one-size-fits-all judicial fiat be the final word on abortion. The fights that should have happened after 1973 will finally take place after being frozen in time for 49 years.
Roe, of course, is bad because it was imposed on the nation, handed down from on high by black-robed politicians who arrogated legislative powers to themselves.
If the people’s elected representatives assembled in state legislatures, instead of power-usurping presidentially-appointed solons in Washington, D.C., had legalized abortion, the action would have enjoyed legitimacy.
This is how our constitutional republic is supposed to work.
But that’s not what happened. In 1973 seven justices took it upon themselves to force their vision on America, using doctored history and spurious, concocted legalisms to fabricate a constitutional right to abortion that they falsely claimed had existed undiscovered for centuries. It is both astonishing and horrifying that this atrocity managed to live almost a half-century.
One constitutional scholar, John Hart Ely, wrote years ago that he “would vote for a statute very much like the one the Court ended up drafting” if he had been “a legislator,” but he believed Roe was “not constitutional law” at all “and gave almost no sense of an obligation to try to be.”
One of the two dissenters in Roe, Justice Byron White, who was appointed by President John F. Kennedy, called the ruling lawless, writing that it represented the “exercise of raw judicial power.”
Roberts could have been part of the new majority opinion (pdf) in Dobbs, joining his five fellow conservative justices in making history in a ruling Ed Whelan of the Ethics and Public Policy Center hailed as the “crowning achievement of the conservative legal movement.”
But Roberts, who is frequently rumored online to be a continuing victim of blackmail, didn’t do that.
Instead, the calculating chief justice agreed with the five conservatives that Mississippi’s Gestational Age Act, which allows abortions after 15 weeks of pregnancy only for medical emergencies or severe fetal abnormality, should be upheld. This led to the Dobbs tally of 6-3, which refers to the bare-bones finding of the court, that is, the specific ruling on Mississippi law that the justices voted for.
Yet Roberts lacked the integrity to go all the way and overturn Roe, as his five courageous colleagues did.
Assessing the vote count gets a little tricky, so bear with me.
Roberts filed what the court described as an opinion “concurring in judgment.” Often the court labels such opinions as “concurring in part, dissenting in part” from the majority opinion, but not here.
Roberts’s nonsensical opinion would uphold the Mississippi law, which violates Roe, yet keep Roe in place. Imagine the chaos that would break out in America if his was the majority opinion. How would such a self-contradictory opinion even be enforced? How would courts and lawmakers deal with a bait-and-switch ruling that says Roe is wrong but doesn’t overturn it, while at the same granting Mississippi an exemption from following Roe?
The mind boggles.
In Dobbs, Roberts decided to vote to uphold the Mississippi law restricting abortions and nothing more. He did not – as several media outlets erroneously reported— join the bitterly worded three-way dissent filed by the liberal justices. This means that despite the overall 6-3 tally, the vote to overturn Roe was actually 5-4. Perhaps a better way to report on the Dobbs ruling would have been to say the vote was 5-1-3.
And while conservatives may not like the dissenting opinion issued jointly by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan – it ends in “we dissent,” without the customary “respectfully” prepended to the phrase — no one can say it is crazy or incomprehensible. The left-wing justices believed Roe should still be the law of the land and made no bones about it as they presented their reasoning.
The Roberts opinion, on the other hand, reflects the disordered mind of a troubled man desperate for attention and approval.
In his “concurring” opinion, Roberts stated the Dobbs majority went too far. “Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share,” he wrote, splitting the baby in half as it were, just as Solomon threatened to do in the Old Testament.
Mississippi was slippery as it hedged its bets, arguing improbably that a judgment in its favor, in Roberts’s words, would “not require the Court to overturn” existing precedents.
“I would take a more measured course,” Roberts wrote. “The viability line established by Roe and [its subsequent companion ruling] Casey…never made any sense,” he said, referring to the principle that an unborn human should not be aborted once it is capable of surviving outside the womb.
“But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
“Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all,” Roberts wrote, throwing caution to the wind.
“I would decide the question we granted review to answer — whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case. I therefore concur only in the judgment.”
This is cowardice mixed with insanity, but this is the way Roberts operates. The reckless, self-indulgent chief justice doesn’t care if his hair-splitting rulings confuse or hurt people.
Roberts comes across as a crazy person who has absolutely no business holding an important position of authority in government, including overseeing the Foreign Intelligence Surveillance Court, which Barack Obama and Hillary Clinton manipulated to advance their rolling conspiracy to overthrow Donald Trump, the duly elected 45th president. On that score, no one is really sure what Roberts knew and when he knew it.
Even in a town known for inflated egos, Roberts stands out as an egomaniac of epic proportions. He is the court’s self-appointed institutional guardian whose legendary machinations, instead of protecting the court’s reputation, have destroyed it. He misguidedly saved the obviously unconstitutional Obamacare statute in 2012 in NFIB v. Sebelius, which led to the court, normally a scrupulous observer of stare decisis, the doctrine of following precedent, subsequently upholding Obamacare.
In Sebelius, Roberts wrote a deservedly-savaged opinion in which he upheld the individual mandate to purchase health insurance as a constitutional exercise of the congressional taxing power, even though such a mandate obviously isn’t a tax.
Now that Obamacare is the law of the land, don’t count on the Supreme Court ever reversing the Sebelius decision – even some of the conservative justices will dig in their heels to defend it. As a result of garbage rulings like Sebelius, public approval of the court now is as low as I can remember it ever being, and the waffling Roberts with his wanton disregard for the law and the well-being of his fellow Americans, is largely responsible for that.
Some trace Roberts’s strange behavior to 2010 when President Barack Obama scolded justices to their faces at a State of the Union address, arguing the jurist was traumatized by the event, which turned him into the ultimate behind-the-scenes judicial horse-trader in an effort to save the court from elected officials.
But it was 2020 when Roberts’s abandonment of the rule of law became impossible to ignore.
That year as draconian pandemic restrictions descended on America, Roberts’s various rulings suggested he believed there was a pandemic exception to First Amendment religious protections, as I wrote elsewhere at the time.
In May, in South Bay United Pentecostal Church v. Newsom, a 5-4 ruling, Roberts agreed with the then-four liberals on the court as they tossed a request from a California church that asked to be allowed to function under the same conditions as secular businesses.
In July, Roberts also voted with the left-wing quartet to deny a similar request from a Nevada church. This spurred a passionate dissent from Justice Neil Gorsuch who caustically wrote that: “The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.” Calvary Chapel Dayton Valley v. Sisolak was decided 5–4.
In June, the high court held 5–4 in Department of Homeland Security (DHS) v. Regents of the University of California, that the Trump administration did not follow the Administrative Procedure Act (APA) when it nixed the Deferred Action for Childhood Arrivals (DACA) program that shielded hundreds of thousands of young people who came to the country illegally from being removed.
“The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so,” the chief justice wrote, again siding with the four liberals.
Roberts didn’t care that Obama invented DACA in 2012 with the stroke of a pen after saying over and over again that no president could lawfully do such a thing. Conservatives reasoned that if Obama could impose DACA on America by executive action, Trump could kill it the same way. But Roberts ruled that the APA was more important than the Constitution.
Roberts also penned the 5–4 opinion in Department of Commerce v. New York in June 2019 in which the court dismissed the Trump administration’s reason for wanting to ask those responding to the 2020 Census whether they were U.S. citizens, something that was asked many times in the past by the Census Bureau. Roberts again weighed in on the side of the liberals, pointing to the APA.
Never shy to draw attention to judicial wrongdoing, Justice Clarence Thomas went on the attack.
“The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions,” Thomas wrote in a dissenting opinion. “And, if taken seriously as a rule of decision, this holding would transform administrative law.”
This is not an exhaustive list of Roberts’s wacky juridical escapades. This is what the man does and he will never, ever change.
It is not hyperbole to say that Roberts is a menace, an enemy of the rule of law.
Maybe Roberts would feel more comfortable sitting on the Supreme Court of Mississippi instead of the Supreme Court of the United States.
Failing that, he could be impeached and removed from office next time Republicans control Congress and the White House at the same time.
That is what Roberts deserves and America urgently requires.
Image Credit: Wikimedia Commons