In Defense of Chief Justice Roberts

John Roberts. Chief Justice of the US Supreme Court? Or… Calculating agent of DC elitism/adversary to the common man?

Last week, Roberts the conspirator was given another face - as a shield helping an overreaching executive evade necessary scrutiny. In the same vein, writing in The New York Times a few weeks ago, Adam Liptak provided a similar analysis - the Chief Justice is a legal schemer; every vote fixing the quiet foundation for future conservative legal victories. These days, from the left, the right and the government establishment, Roberts is now regularly decried as a legal Machiavelli. A quiet malevolent that mustn't be trusted. But let’s be clear, this is simple slander; widespread, relentless and false. When one considers the tone of abuse to which Roberts is subjected, the result is an embarrassing indictment against America. Consider the cases. Following the Supreme Court’s Citizens United decision (allowing expanded corporate political advocacy), Roberts was condemned by the left as having unhinged the very bolts of American democracy. Jonathan Alter labeled Roberts a ‘’radical’', and characterized him as a man driven inexorably by his own hubris. Following the recent Shelby County v Holder decision (concerning the Voting Rights Act) Slate’s Emily Bazelon implied that Roberts was a kind of human stealth bomber – covertly annihilating the most precious of American rights for the most vulnerable of American citizens.

It’s not only the left.

Think about the conservative wrath that Roberts incurred for upholding Obamacare. Jim Antle spoke of a ‘’betrayal’’, Brent Bozell declared Roberts a ‘’traitor’’ and Erick Erickson claimed Roberts had self-destructed. Indiana Governor (then Congressman) Mike Pence compared the decision to 9/11. Senator Rand Paul rebuked Marbury v Madison – the foundation of American judicial review. Then, driving the fury off a rhetorical cliff edge, radio host Michael Savage explained that Roberts decision showed he had over-medicated his epilepsy treatments.

But the anti-Roberts racket has another avowed supporter, one who lives at 1600 Pennsylvania Avenue. In his 2010 State of the Union address, President Obama launched a putrid partisan attack against the Roberts court as it sat in audience. That scene; of cloaked Justices surrounded by baying Democrats should have troubled all Americans. It said something stunning that the President of the United States, let alone a distinguished graduate of Harvard Law School, would deliberately create such a spectacle. Churned in this theatre of absurdity, the separation of powers was rendered a near farce. 

In demanding a political environment in which independent thought is both sought and devalued, Americans have allowed a terrible delusion to permeate our political contemplation. Because Roberts’s votes cannot easily be predicted - because he cannot be tied down, we thus assume that our Chief Justice cannot be trusted. This is our toxic landscape. A land in which honest jurisprudence is regarded as the dark art of a nefarious mind. Who cares that Roberts’s legal opinions offer articulate, easily understandable explanations? Not us. Not in today’s America. Here, orthodoxy holds the mantle of truth. By slandering servants like Roberts; by finding conspiracies and contradictions in their professionalism, we’re discouraging their independence and the very notion of public service.

The Democratic Party's Constitutional Ambivalence

The Constitution is the guide which I never will abandon. July 28, 1795.

From the standpoint of his above quote, George Washington would not be happy with today’s Democratic Party. It’s hardly difficult to understand why. Following his revolutionary victory, in order to establish an American government checked by balanced of power, Washington turned down the opportunity for absolute personal power. Washington understood that in order for American democracy to survive the ages, the various mechanisms of our government would have to operate in respectful equilibrium. In response, the founding fathers gave us the Constitution. 

Unfortunately, today’s Democratic Party has become the standard bearer of Constitutional absurdity.

First, let's look at the Judicial component.

Taking Democrats at their word, you’d believe that their judicial philosophy has an overarching, unifying objective- the pursuit of core public interests and the protection of individual freedom. But this isn’t the case. Instead, for many Democrats, Constitutional interpretation has become a fundamentally subjective venture. Just check the record.

This Supreme Court session, considering two relevant cases, the Justices will decide on a major Democratic priority- 1) whether gay couples have a Constitutional right to marriage and/or 2) whether they have a right to the same benefits that are available to heterosexual couples. Generally, Democrats believe that the government has no right to grant or deny rights on the basis of moral judgments concerning intimate, adult relationships. Recognizing the Constitutional right to equal protection under law, I support this understanding (at least as it relates to the second case).  However, Democrats are far from consistent when offering their legal support for individual freedom. For one example, consider gun rights. As decided by the Supreme Court in Heller (2008) and McDonald (2010), the Second Amendment grants an incorporated right to all Americans, to possess handguns in their homes. Unfortunately, in their present pursuit of bans on all semi-automatic weapons (including handguns), imposing stringent magazine capacity limits (ten rounds or less) and requiring prospective handgun purchasers to submit fingerprints, many Democrats are actively challenging established Constitutional rights. While many conservatives (myself included) recognize that gun rights are not absolute, the boundaries of the law are clear: American citizens have the right to possess (at least some) semi-automatic weapons, without suffering excessive government obstruction.

It isn't just guns though. Consider the Democratic Party position on government power re- private conduct. When, in 2012, the Supreme Court upheld the Federal Government’s right to impose taxes on individuals who fail to buy health insurance, Democrats were overjoyed. Yet, as exemplified by their infinite outrage over the 2010 Citizens United ruling, Democrats also apparently believe that the government has the right to gag political speech. Under this  warped Constitutional theory, government can seemingly compel both consumer purchases and political silence. 

This is a legal framework without credibility.

 Ultimately, there is no Constitutional logic to a judicial interpretation which resides upon inconsistent, subjective whims of the moment. This is anathema to the Constitution’s existential purpose. The Constitution doesn’t exist as a kind of political ‘phone a friend’- a tool for difficult situations, but one to be ignored when so desired. It requires lasting respect.

Sadly, it’s not simply case law where Democrats are ridiculing the Constitution. 

Consider the on-going interactions between the Executive and Legislative branches of government. Before he entered the Oval Office, Senator Obama railed against President Bush for putting ‘more and more power in the executive branch’. However, since then, he's had a change of mind. Whether concerning Libya, executive privilege, energy policy, immigration, or now guns, on various critical issues, this President has no qualms ignoring congressional authority when he so desires. Not a great record for a former Constitutional law professor.

In the context of their previous complaints about Bush's executive, you might have expected at least a little hesitation from congressional Democrats over Obama’s executive reach. Conversely, congressional Democrats have become subservient allies to Obama’s expansive executive. A good example? The evolving battle over the March debt limit. Faced with congressional Republicans who understandably want entitlement reform in return for debt limit increases (without reform, we will continue our proud, national dive into the fiscal abyss), Democrats have offered a unique three-part alternative to honest negotiation.

 First, to demagogue against Republicans for not capitulating to the President’s demands. This first element is particularly bold, considering that former House Speaker Pelosi felt entitled to her own abysmal (really worth checking this link!) foreign policy during the Bush Presidency.

Second, change the rules.

Finally, if all else fails, ignore the Congress and its Constitutionally granted power of the purse.

Sidestepping Congress, what do Democrats suggest in return? Proposals, which are so utterly ludicrous, they appear to be the product of Monty Python movies. Suggestions of $1 trillion coins and intoxicated readings of the 14th Amendment are not acts of proud Democratic legislators; they are the product of a delusional deference to executive power. This is the obsessive pursuit of power as an end in itself.

Liberals like to claim that conservatives are to blame for our national political dysfunction and I’ll admit, we have to share some blame. However, in substituting cartoonish surrealism for the Constitution, Democrats are attacking the basic essence of American democracy.

Our country faces profound national challenges. It's understandable that difficult political dynamics will burden our efforts to find solutions. However, the Constitution should never be treated as a casual partisan tool. Over hundreds of years, our balanced system of government has guided us through the pain of civil and foreign wars, the misery of economic depression and the strife of great social upheaval. While Democrats played a crucial part in this national journey, the journey isn’t yet over. We still need the Constitution and it continues to deserve the Democratic Party's respect.

 

UK laws on free speech

UK law is stupid when it comes to issues of free speech. Recently, a number of criminal prosecutions have been brought against individuals who made remarks on the internet which upset people. These comments were dumb, mean spirited and deserving of repudiation. However, they should not have received criminal sanction. The fact that English law imposes a burden on a speaker to ensure that his speech will not reasonably be perceived as offensive (even if he does not intend for it to be so) is truly ridiculous. Such a burden restricts emotional debate and chills public discourse on matters of key public concern. It also leads to a profoundly tiered approach towards determining what is and what is not legitimate speech, allowing prosecutors and the police to apply their own flexibly subjective standards in the enforcement of the law. These laws are un-democratic and authoritarian. Sadly they are supplemented by equally bad UK laws on defamation. I am gratified that the US still protects free speech where the UK does not.

It shouldn't be illegal to be an ass hole.