I (run7511) resurrected this commentary from March 2013. It is a realistic commentary about what John Roberts is all about. A take on what they were discussing then and how SCOTUS is reacting today.
WASHINGTON — As the justices of the
Supreme Court struggled with the question of
same-sex marriage this week, politicians in Congress kept handing down their own verdict. One after another, a series of lawmakers in recent days endorsed allowing gay men and lesbians to wed.
But momentum in the political world for gay rights could actually limit momentum in the legal world. While the court may throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official. The prospect that gay rights advocates may become a victim of their own political success was underscored during arguments on Wednesday over the constitutionality of the Defense of Marriage Act. Opponents of the law were left to make the paradoxical argument that the nation has come to accept that gay men and lesbians deserve the same right to marriage as heterosexuals while maintaining that they are a politically oppressed class deserving the protection of the courts.
Chief Justice John G. Roberts Jr. pressed that point with the lawyer for the plaintiff, a New York woman suing to recover federal estate taxes she would not have had to pay had her spouse been a man.
“You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?” he asked the lawyer.
For purposes of the law, said the lawyer, Roberta Kaplan, “I would, your honor.”
“Really?” the chief justice asked skeptically. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
The movement-conservative legal crowd that began to gain a stranglehold on the federal court system the early 1980s, and that is now represented by four, and in deeply important respects five, Supreme Court justices, has thoroughly transformed the law and court system. It has done so mostly under the public’s radar screen and so has had a nearly unfettered free ride. But now, little by little–albeit by too little–the free ride is becoming slightly less unfettered, as the Supreme Court, if not the lower federal courts, is garnering meaningful and detailed attention in some important respects.
Call it
heightened scrutiny. Or maybe even
strict scrutiny. In any event, at least with respect to culture-wars cases at the Supreme Court, it no longer is
rational-basis scrutiny. All of these are terms that, although unfamiliar to non-lawyers, are
quite familiar to John Roberts. And they explain, as I will below, the purpose of that above-quoted colloquy.
There is now some cost in public opinion, not only to the overt jaw-dropping statements made by Antonin Scalia but also to the slightly more subtle (yet equally stunning to those who know the code) declarations by our Supreme Court’s chief justice during oral arguments. Statements jolting enough to garner publicity and therefore to provide public insight into the true, hell-bent goals of this movement.
Scalia and Roberts are the Paul Ryan of the federal judicial branch. They and their compadres have a roadmap, and Roberts has now joined Scalia in openly revealing its intended final destination. Except that this duo is remarkably careless in presuming that they can control that final destination. They can’t.
Here’s what Roberts was getting at: Under the Supreme Court’s longstanding equal protection jurisprudence, there are three levels of equal-protection “scrutiny” that courts must accord laws, government policies or government officials’ actions that discriminate against particular groups or individuals, or that favor one or another group. The highest level of scrutiny is–or, more accurately, originally was–reserved for “invidious” groups, such as racial, ethnic, or religious minorities, that suffered broad societal discrimination. Laws or government policies or actions that discriminated against these groups would be subject to “strict” constitutional scrutiny, which means that they would pass constitutional muster only if there was a “compelling governmental interest” that the law or policy furthered. That standard is almost impossible to meet, so most such laws or policies were stricken as unconstitutionally discriminatory.
Strict scrutiny also is the level of constitutional scrutiny applied to laws that infringe upon what are considered “fundamental” rights–rights that are stated expressly and specifically in the Constitution, and rights that the Supreme Court has recognized under a doctrine derived from the Fifth and Fourteenth amendments, called “substantive due process.”
An intermediate level of scrutiny–”heightened” scrutiny–applies to government discrimination (denials of equal protection of the laws) for less invidious groups that nonetheless do suffer societal discrimination. Age discrimination, for example. And gender discrimination.
Government discrimination that does not fall into one of those two categories is accorded, and permitted, very little scrutiny. Specifically, any stated “rational basis” for the law or policy will suffice as sufficiently constitutional.
An early justification by the Supreme Court for categorizing a group as protected from discriminatory laws or government policies or actions under strict, or even heightened, constitutional scrutiny was that –you guessed it–the group lacked political power and therefore could not fend off discriminatory legislation or policies through the political system. Thus, the Roberts comments above.
But, mainly thanks to the efforts of the movement-conservative legal crowd of which John Roberts has always been a charter member, the importance of a group’s political power–or lack thereof–is most certainly no longer a consideration in applying strict or heightened scrutiny to discriminatory government actions. Unless, of course, white high school seniors or white government-contractor applicants have no political power because, well, they’re white. Or unless Christian evangelicals and Catholics have no political power because they are Christian evangelical or Catholic. Or because they are religious.
And, yes, a favorite genre of the current movement-conservative law folks during the last three decades has been the novel use of equal protection law as a means to circumvent the First Amendment’s Establishment clause–the clause in the Constitution that bars the government from favoring one religion over others, or from favoring religion in general. The First Amendment’s Free Exercise clause wasn’t sufficient, because, well, there really isn’t a First Amendment right to commandeer the government in the service of your own practice of religion. But if the government is going to allow non-religious groups to do something in particular, it must allow religious groups to do the same, as long as doing the same doesn’t force others to participate in, or be present at, your religious exercise, courtesy of the government. Even if the government has a rational basis for not allowing it.
So John Roberts wants to reinstate the lack-of-political-clout requirement for any level of equal protection scrutiny other than the rubber-stamp rational-basis level of equal protection scrutiny. But only for the purpose of denying same-sex couples federal spousal benefits such as estate tax exemptions and Social Security survivors’ benefits. And for the purpose of allowing states to prohibit same-sex marriage. But rest assured that Abigail Fisher, the unsuccessful University of Texas applicant who is white and hails from an upscale Houston suburb, and who probably was not asked to show a birth certificate when she registered to vote at the age of 18, will not lose her case because political figures are falling over themselves to endorse her side of the case, and have been, for decades longer than political figures have been falling over themselves to endorse the same-sex-marriage plaintiffs’ side of their case. That is, for decades before, say, a month or two ago. It’s John Roberts’ bad luck that the affirmative action case will be decided within weeks, or perhaps just days, of the same-sex-marriage cases. I do think there’s another name, though, for Roberts’ luck, if not for Roberts himself: poetic justice.
you think his opinion will be influenced by the theft of his credit-card, forcing him to pay cash for his coffee Tuesday morning?
I think he made up that story about his credit card, rjs. I think he was just too embarrassed to say that the bank closed the account because he had defaulted on it. I read that he’s run into serious financial trouble because of some large investments he made a few years ago in rare Portuguese wines and antique Scottish cloth that he bought when he heard about Paul Krugman’s huge investments in those commodities and figured that Krugman wouldn’t have won a Nobel prize if he didn’t know what he was doing, investment-wise. But Roberts, like Krugman, ended up losing his entire investment when the market in both of those commodities tanked.
damn you beverly, you slipped one past me again; when i first read that, i thought you made up that whole story about Krugman’s investments in rare Portuguese wines and antique Scottish cloth…but now i see that’s exactly the way it was reported…
Me? Make something up? How dare you!
Krugman’s blog posts on it were funny, especially the second one:
http://krugman.blogs.nytimes.com/2013/03/11/breitbarted/ and
http://krugman.blogs.nytimes.com/2013/03/12/all-me-all-the-time/
These Krugman posts are not any sort of documentation, just laughing at a rumor. This thread is all just making stuff up until there is documentation, and I am reasonably sure there is no documentation.
Sorry, but I find this thread nonsense.
ltr:
How many times have you quoted Krugman? This is from a decade March 2013) ago when Bev was at AB and writing about Roberts. Roberts is acting as Bev has predicted from what “I” see. Hence I remembered her foresight and reposted her commentary. Bev is an attorney and retired from practice.
The comments are more about questioning. And Bev pulled a slight of hand on commenters. I left them whole so as not to destroy the thread in a reprint.
finally found the krugman column i was looking for last night; never thought he would respond to this one:
PK: I’ve Never Actually Seen the Resemblance
I get the feeling that Roberts is arguing that minorities can no longer claim special rights and privileges unless they are so small they have zero political power. Roberts allowed money to be part of speech and Citizens United gave that money the unfettered political power to influence policy so my bet his argument is to avoid nasty legal and moral questions by just telling everyone to find the money, spend it on your issue and stop complaining if you lose. This can then make our entire legal system subject to the power of money, a perfect conservative world.
@ Woolley
I think Woolley has the answer. I wouldn’t worry too much about the particular reasoning of the Court. They will change their reasoning if they need to. Though of course it’s always fun to demonstrate how specious it is.
On the other hand…it’s too late now, but I did once suggest that gay people could gain their substantive rights easier if they did it quietly without rubbing the noses of people not ready for it in their gay lifestyle. subsequently i decided i was probably wrong, since they seemed to be having so much success with it. But then again their success has called out a backlash that may prove strong enough to reverse their gains. Certainly it has aided the forces that don’t really give a damn about gay rights or gay behavior, but can see an opportunity to foment hate to divide and conquer and keep us at each other’s throats while they create the infrastructure that binds us in economic chains every bit as real as the iron ones that slave masters used to need.
Please note that the most recent case re gay rights versus “religious freedom” was made up out of whole cloth so they didn’t even have to bother with reasonings. just as they didn’t have to bother to make sense in Dobbs, or find real harm in affirmative action.
Ah. Krugman can deny it all he wants, rjs, but the camera doesn’t lie.
Actually, Woolley, the truth about Roberts is that he’s a swinger, and he’s apparently about to swing wildly in the next two months. It looks like he’s planning to say that gay partners must rely on their new-found political power rather than the courts if they want to be able to enjoy the legal privileges accorded to spouses–such as avoidance of estate taxes and enjoyment of spousal rights in the roughly-1,100 federal laws to which DOMA applies. And he’s also going to say that upscale white families need not rely on political power in order to piggyback on the lack thereof of blacks and other racial minorities during the Warren Court era and have so-called-reverse-discrimination laws ruled unconstitutional under “strict scrutiny” equal protection analysis.
So put on a neck brace if you plan to read these opinions within, say, a few days of each other. Whiplash is painful.
I will say, though, that Roberts isn’t responsible for the initial money-in-politics-equals-speech Supreme Court rulings; those predated Roberts’ tenure on the Court. He and his current compadres are, though, of course responsible for the Citizens United extension of that.
Hi, Bev; que pasa?
Jack:
I did a reprint
Oh, then I guess I should have said, “run, que pasa?”.
Jack:
What Bev said about Roberts in 2013 is even more true in 2023. I remembered her post on Roberts.
It seems to me that if John Roberts is not exactly a conservative because he has a few moderate tendencies (like on Obamacare), he is quite willing to provide cover for Thomas & Alito. Just as Kavanaugh, Gorsuch & Barrett are willing to make full use of that cover.
A wolf in sheep’s clothing maybe.
Fred:
Roberts definitely knows what he is doing
Are we looking at a flood of Biblical proportions heading our way?
Genesis flood narrative
Wikipedia: The Genesis flood narrative (chapters 6–9 of the Book of Genesis) is a Hebrew flood myth. It tells of God’s decision to return the universe to its pre-creation state of watery chaos and remake it through the microcosm of Noah’s ark.
Or maybe it’s only Global Warming.
Either way, looks like the Roberts court is not going to object.
Fred
obamacare was entirely to the liking of the insurance companies. after all, it started out as Romneycare. roberts did not need to become a liberal or even a moderate to support it.
and that’s evan allowing for the fact that “moderates” or “centrists” are and always have been wolves in sheeps clothing.
Indeed. GOP pundits came up with the idea of ‘mandatory’ insurance and were thinking that the Dems would never accept it. It was a bluff. Here in MA the all-powerful Dem-dominated legislature DID buy into the idea. RomneyCare was born. Obama picked up on the idea. (There are a lot of insurance companies hq’d here & nearby CT. Surely they were pleased.)
‘Be careful what you wish for!’
‘Moderates’ are just moderate.
It would be better to have tax-supported universal healthcare, IMO, but it’s way too ‘socialistical’ for red-blooded Americans apparently.
I made a serious comment about Roberts which didn’t make it.
My sense, after many years of the Roberts court, is that he is a ‘moderate’ conservative who seems to appreciate that the Court really needs to seem ‘moderate’ also but must cater to the wishes of the conservatives who have been appointed, not so much (at all?) to the few remaining liberal justices. This does not suit the likes of the American public at large, given the urban/suburban majority of the population. It does serve the wishes of the dwindling white majority however. This is dangerous. It is in the nature of the conservative approach to not care so much about this danger. Roberts has to provide cover for the other more reactionary justices on ‘his’ Court, foremost.
After all, in the conservative view, global warming will take care itself in the end, even if it costs us the next population apocalypse, ala the end of the Roman civilization, or worse.
After all, it’d be God’s Will. What’s wrong with that?
A civilization ending flood of Biblical proportions, or merely Global Warming (Climate Change if you prefer.) Either way, humankind gets what it deserves. Grin & bear it.
An Antarctic ice shelf calved a giant iceberg (about 900 sq miles) back in January. It is asserted that iceshelf calving does not add to sea-level raising at least directly, because such shelves are already in the water. However when the glaciers behind them slide into the ocean, that will lead to sea-level raising.
Giant iceberg breaks away from Antarctic ice shelf
European Space Agency – January 25
is (this) a problem?
UVA Today – February 3
… Ice shelves and ice blocks, known as icebergs, that break off of ice shelves do not contribute to sea-level rise. That’s because their volumes have already been compensated for in the ocean at the initial point of floatation, when glacier ice left land and began to float in the ocean.
However, ice shelves protect upstream glaciers by acting as a physical barrier to slow down glacier ice flow into the ocean and, thus, dampen glacier sea-level contributions. …
Fun fact: Ice is slightly less dense than liquid water. That’s why it floats.
Melting ice cubes in a glass of water do not increase the volume of water in a glass. The same is true for ice shelves. The glaciers behind them are not ‘in the water’, so when they melt they add to an ocean’s volume.
Here’s an article that disputes this assertion. Most of the volume of the Antarctic ice cap sits well above sea level. If most/all of the ice cap melts, sea levels will rise considerably. (Most of the landmass of Antarctica is well below sea level.)
Not true for the Artic icecap however, which sits in the Arctic ocean, but true for the ice sitting on Greenland.
The Antarctic Ice Sheet–A Sleeping Giant?
Thought experiment:
Fill a glass with water. Load in a lot of ice so that it overfills the glass. Initially, water should overflow the glass. (This doesn’t count.)
I think that, as the ice melts, the overflow will continue. (To the extent the ice floated above the rim of the glass.) This represents what will happen if the Greenland ice & the Antarctic icecap melts (I think). Sea levels will rise.
This will only work the way I want it to, most likely, if the glass is filled entirely with ice, to above the rim of the glass. Then water should flow out until the level is down to the rim as the ice melts.
“must cater to the wishes of the conservative justices…”
More accurately, perhaps, “must reflect the wishes of the conservative justices…” who make up the SC majority these days.
At this point, I do not think Roberts can control the court and his dream of being Chief Justice with honor is gone. At least three of the justices that voted to overturn Roe are liars. There is no other way to describe their testimony in their hearings with their decision to overturn Roe. Roberts cannot help himself though, he is a conservative and that label brings along ideology. That ideology is an artifact of the past but this court will do whatever it can regardless of precedent or logic to preserve their image of that golden past. They are doomed in the long run but in the short run, they hold the power. It is time for the left to use legal means to dilute that power, everything must be on the table.
Chief Justices rule the court by controlling the schedule, and by their charisma. Little else.
It seems Roberts does not have a lot of charisma. But what is there is conservative.
They don’t have a lot of power otherwise. John Marshall, not the first Chief Justice, but arguably the most influential.
Indeed, marshall gave the Court the power to overturn state laws. that was not in the constitution until the 14th amendment. but the constitution is whatever the Court says it is. until jackson or lincoln or roosevelt comes along with the charisma to ignore it or to bluff it into changing its mind.
[jackson telling the court to go enforce itself appears not to have ben directly about the trail of tears episode but a relatively minor case about the right of the state of georgia to enforce its state laws on indian (legally sovereign) territory.]
John Roberts, Conservative Statesman
NY Times – Ross Douthat – July 1
The unusual powers of the American Supreme Court have unusual effects on all its members, but especially on whichever justices hold the balance of power: Their role fits especially uneasily with the letter of the Constitution and modern democratic norms, evoking more ancient forms or concepts — the Roman censor, the Greek archon, Plato’s philosopher-king.
Three figures have occupied and sometimes shared this role over the last two generations, and each has brought a different mind-set to the work.
Sandra Day O’Connor, drawing on her background as an elected official, often seemed to regard herself a canny intuiter of the American middle ground, constantly seeking political balances and settlements.
Then Anthony Kennedy, who shared the role with O’Connor and stood alone after her retirement, seemed to favor the philosopher-king model, issuing sweeping judgments based on his distinctive libertarianism, often written in the style of a papal bull.
John Roberts, who inherited the role fully in 2018, lacks the same influence now that the court is no longer split 5-4; the awesome power that Kennedy enjoyed is diminished by being shared with Brett Kavanaugh or Neil Gorsuch or Amy Coney Barrett.
But it’s still Roberts who plays the crucial role the most, Roberts whose position allows him some modest steering power, and Roberts whose stamp seems strongest on this Supreme Court season, with his rulings against affirmative action and President Biden’s student debt cancellation rounding out the term.
So what can we say about his work as the Court’s decider? A common interpretation casts him as a careful legal politician and aggressive husbander of the court’s legitimacy — whether via judicial minimalism (the quest for decisions with narrow implications) or via a deference to stare decisis (for all the high-profile exceptions, the Roberts court has been more cautious about overturning precedent than its predecessors).
Roberts’s critics would turn this interpretation into a critique. From the right would come the complaint that he issues decisions (his vote to uphold Obamacare is a particular sore spot) that seem like political calculation rather than coherent constitutional interpretation; from the left, the complaint that he’s a minimalist on smaller cases, husbanding the court’s credibility for big Republican-friendly rulings. …
John Roberts, Conservative Statesman
NY Times – July 1
The unusual powers of the American Supreme Court have unusual effects on all its members, but especially on whichever justices hold the balance of power: Their role fits especially uneasily with the letter of the Constitution and modern democratic norms, evoking more ancient forms or concepts — the Roman censor, the Greek archon, Plato’s philosopher-king. …
(The role of decider, which is what this op-ed is about, only exists when the SC court is evenly divided, which is obviously not the case now. There is rarely a decider these days.)
… So what can we say about (John Roberts’s) work as the Court’s decider? A common interpretation casts him as a careful legal politician and aggressive husbander of the court’s legitimacy — whether via judicial minimalism (the quest for decisions with narrow implications) or via a deference to stare decisis (for all the high-profile exceptions, the Roberts court has been more cautious about overturning precedent than its predecessors).
Roberts’s critics would turn this interpretation into a critique. From the right would come the complaint that he issues decisions (his vote to uphold Obamacare is a particular sore spot) that seem like political calculation rather than coherent constitutional interpretation; from the left, the complaint that he’s a minimalist on smaller cases, husbanding the court’s credibility for big Republican-friendly rulings.
The combined critique yields a correct description: Roberts wields his Supreme Court swing vote as a kind of conservative statesman, with a vision of the long-term (not just immediate) interests of the right-of-center coalition in the background of his rulings. The minimalism is part of this attempted statesmanship, so is the occasionally implausible difference-splitting, so are the bigger swings like the affirmative action ruling — and so are brush-backs he occasionally delivers to the right. He acts, in many ways, like the farsighted Republican president we haven’t had this century — ideological but careful, moderating his own side’s demands but still seeking its advantage. …
Any praise for Roberts’s acumen has to come with the proviso that it’s daft for a democratic republic to have an unelected justice play this kind of statesman role. But if no one else fills the part, I’m disinclined to rage against him: Better a different system, but in this system, better John Roberts than nobody at all.
(Yeah, right.)
Roberts, Thomas & Alito all started in Reagan’s administration, I believe.
Alito wrote a memo which caught the attention of GOP leaders on how to implement a conservative majority on the Supreme Court, which was implemented over the next 30 years or so. The result is what we have now which will be long lasting, alas.
Biden doesn’t want to pack the court, because the GOP will then repack it when they get the chance.
As seen on the web: The justices of the (Italian) Supreme Court are about 350: 1 Chief justice, 1 deputy president, 54 justices presiding over the divisions, 288 Supreme Court judges.
The Supreme Court’s Disorienting Elevation of Religion
NY Times – July 8
This term, the Supreme Court decided two cases involving religion: Groff v. DeJoy was a relatively low-profile case about religious accommodations at work; 303 Creative v. Elenis was a blockbuster case about the clash between religious exercise and principles of equal treatment. (The legal question was technically about speech, but religion was at the core of the dispute.)
In both cases, plaintiffs asserted religiously grounded objections to complying with longstanding and well-settled laws or rules that would otherwise apply to them. And in both, the court handed the plaintiff a resounding victory.
These cases are the latest examples of a striking long-term trend: Especially since Amy Coney Barrett became a justice in 2020, the court has taken a sledgehammer to a set of practices and compromises that have been carefully forged over decades to balance religious freedom with other important — and sometimes countervailing — principles.
The First Amendment’s establishment clause was once understood to place limits on the government’s involvement with or facilitation of religion, but those limits appear to have been smashed. This legal demolition has been accompanied by the demotion of other important principles like equality, public health and simple fairness in law, resulting in a disorienting imbalance of values in American society. …