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HAMMER: Kavanaugh And Gorsuch Have Issues. But John Roberts Remains The Court’s Biggest Problem For Conservatives.

John Roberts
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Another disappointing U.S. Supreme Court term came to an end a few weeks ago. From a conservative perspective, it is exceedingly difficult to find much with which to be enthralled. With the laudable exception of partisan gerrymandering — and the possible additional exception of the Fifth Amendment's Takings Clause — there was very little in the way of doctrinal jurisprudential goalpost-shifting toward a more authentically originalist direction. Many high-profile conservative outcome victories, such as the key First Amendment Establishment Clause case of the Bladensburg "peace cross," did not result in an actual doctrinal shift wherein the Court overthrew an outmoded, unworkable precedent (Lemon v. Kurtzman, in the case of the Bladensburg "peace cross" case). Similarly, anti-administrative state activists could not even get the milquetoast precedent of Auer v. Robbins — which requires federal courts to defer to a regulatory agency's reasonable reading of its own ambiguous regulation — overturned.

 

And the Left would have us believe that this big, scary Court, as presently constituted, would overturn Roe v. Wade? Please.

The reality is that the present Court is not nearly as conservative as pretty much anyone — be it the leftist mainstream media or the Art. III cultists of the judicial supremacist "Right" — would purport to believe. With the exception of Clarence Thomas — in all likelihood, the single greatest living American, period — there is no other jurist on the Court whom conservatives and originalists can deem inherently and wholly trustworthy. Samuel Alito, while rock solid on many cultural issues and laudably tough-minded when it comes to crime, takes a view of stare decisis and the persuasive power of precedent that is far less principled than Thomas's position. Neil Gorsuch, while indubitably intelligent and the closest thing on the present Court to a second true originalist, has deeply unfortunate libertarian tendencies when it comes to the nexus of immigration, due process, and crime. And Brett Kavanaugh, the lifelong inside-the-Beltway establishmentarian who is perhaps best thought of as "Karl Rove in a robe," has gotten off to a very slow start.

Which takes us to Chief Justice John Roberts. What is truly remarkable is that, after all these years and after numerous suboptimal choices for the Court — namely, the selection of Gorsuch over William Pryor and the selection of Kavanaugh over pretty much anyone else who was publicly floated for the seat — the chief justice remains conservatives' single biggest scourge of all.

Roberts, who was reportedly chosen for his perch over the far more reliably conservative Michael Luttig, initially positioned himself during his early years on the Court as an ally to conservatives. In what remains his most famous line ever written in a Supreme Court opinion, Roberts defiantly asserted in the 2007 affirmative action case of Parents Involved in Community Schools v. Seattle School District No. 1 that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Even in more recent years, Roberts has occasionally shown signs of hardened juridical principle: The chief justice penned the lead (and quite scathing) dissent in the utterly lawless 2015 same-sex marriage diktat of Obergefell v. Hodges.

But the infamous 2012 Obamacare case of NFIB v. Sebelius, in which Roberts plainly re-wrote the Obamacare individual mandate as a tax in order to salvage the misbegotten health care statute, marked the beginning of a new era of sorts for the chief justice — an era, that is, seemingly marked more by petty concerns over the Court's "institutional integrity" than by proper concerns for legal principle. Roberts saved Obamacare a second time in 2015's equally egregious statutory case of King v. Burwell and in recent years has been on the wrong side of constitutional principle in doctrinal areas as wide-ranging as the "dormant" Commerce Clause and the Fourth Amendment alike. Much like fellow George W. Bush nominee Alito, Roberts refused to join Thomas's 2016 dissent in Whole Woman's Health v. Hellerstedt and has, thus, never once joined an opinion calling for the overturning of Roe v. Wade.

Tellingly, moreover, it was Roberts who — even more so than Kavanaugh or Gorsuch — undermined conservatives and originalists at the Court this past term more so than any other Republican nominee. Roberts repeatedly joined the Court's liberal bloc on misguided "shadow docket" orders ranging from abortion to the death penalty (and was joined by Kavanaugh on the latter). In Kisor v. Wilkie, which was the Court's best opportunity in two decades to overturn the aforementioned precedent of Auer, Roberts hugely disappointed anti-regulation/anti-administrative state activists by refusing to overturn both Auer and Auer's doctrinal companion, Bowles v. Seminole Rock & Sand Co. Considering that Roberts seems favorably inclined toward one day overruling the anti-constitutional, pro-administrative state "non-delegation doctrine," which has been legally dormant since the New Deal era, it is baffling that Roberts refused to even overturn the far milder Auer precedent.

 

And on final day of the Court's term, of course, Roberts issued an outrageous ruling in the census citizenship dispute of Department of Commerce v. New York. Writing for the Court's majority in New York, Roberts outlandishly held that, though lacking neither constitutional nor statutory support, the Trump administration's decision to include the citizenship question on the U.S. Census on the asserted grounds of collecting data for Voting Rights Act enforcement was "pretextual." Justice Clarence Thomas excoriated Chief Justice Roberts' reasoning, decrying it as "the first time ever" that "the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale." Justice Samuel Alito, even more livid, defiantly asserted that "the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons."

Anthony Kennedy, perhaps the single most pompous, hubristic judge of the past half-century, may have retired. But Roberts has already replaced Kennedy as the Court's true swing vote. Conservatives do not have a majority on the present Court. At best, the Court might be presently viewed as a 4-3-2 liberal-conservative-swing split, with Roberts and Kavanaugh both serving as swing votes.

What is so tragic about Roberts' jurisprudential perfidy is just how easily foreseeable it all was. Daily Wire Editor-in-Chief Ben Shapiro, who was a Harvard Law School student at the time, warned us all about Roberts back in 2005:

Roberts is not an originalist. There is nothing in his very short jurisprudential record to indicate that his judicial philosophy involves strict fidelity to the original meaning of the Constitution. He is not Antonin Scalia, nor is he Clarence Thomas. At best, he is William Rehnquist, for whom he once clerked. ...

[W]e have no choice but to closely examine Roberts' words, because he has virtually no judicial record. No one knows where he stands on key cases like Roe v. Wade. Any originalist, whether politically liberal or conservative, would overturn Roe in a heartbeat. ...

Some claim that Roberts will be another Rehnquist; others claim he will form a "dynamic center" with Justices Anthony Kennedy and Stephen Breyer. When the Supreme Court wields as much clout as it does, why should originalists sit by while a new 30-year swing-bloc is formed?

 

It is possible that Ben has never written a more prescient column in his punditry career.

The lessons to learn from Roberts' tremendously disappointing career on the Court are the same lessons that conservatives ought to learn from Kavanaugh's similarly disappointing start. I have identified three broad criteria for which we ought to carefully vet the next Supreme Court nominee: (1) full-spectrum conservatism, (2) stiff resistance to the "Greenhouse Effect," and (3) eagerness to aggressively correct course. And for the love of God, also make sure the nominee is also someone with a lengthy paper trail and who will not be tempted by non-legal concerns — such as Roberts' obvious and indefensible preoccupation with the Court's "institutional integrity."

I certainly have some people in mind. But, at a bare minimum, next time we desperately need to avoid at all costs the horrific mistake that was the John Roberts nomination.

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