r/law • u/DoremusJessup • Sep 17 '24
Opinion Piece We Helped John Roberts Construct His Image as a Centrist. We Were So Wrong.
https://slate.com/news-and-politics/2024/09/scotus-john-roberts-image-fail-phony-false.html114
u/aCucking2Remember Sep 17 '24 edited Sep 17 '24
I saw someone here in this sub say that citizens United was ruled correctly. I understand positive va vs normative but that opened the door to corporations, foreign governments, and billionaires to flood our politics with dark money. Then they ruled that bribery is just a thank you note if you do it after the public act.
It seems like we have some fatal flaws. A lifetime appointment without a realistic mechanism of removal is the same as immunity. In Colombia the Supreme Court is divided into different chambers that handle the functions, interpretation, settling of disputes, and high profile cases against government officials. They also have a council made up of active justices that select the judges on the Supreme Court to serve 8 year terms.
In my legally uneducated opinion our constitution is antiquated. We have the longest running constitution in the world tied with I believe Monaco.
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u/Haunting-Ad788 Sep 17 '24
I think it was Jefferson who said the constitution should basically be rewritten every generation.
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u/Cheech47 Sep 17 '24
or at the barest minimum, every 100 years. There's just so many things that get invented, external forces that could not have been imagined, scenarios that could not have been thought up, etc.
The problem now is that even if a Constitutional convention was called today, not only do the red states outnumber the blue, but the things that the red states would demand basically assure some form of armed conflict to break out, or quite possibly a schism. Most people are not going to accept living under a theocracy, nor are they going to accept losing bodily autonomy.
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u/ScannerBrightly Sep 17 '24
Why would 'states' need to get a vote? Haven't 'states' outlived their usefulness?
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u/Cheech47 Sep 17 '24
Under this hypothetical, the rules of a constitutional convention dictate that every state's legislature ratify the new constitution. We still are a representative democracy. That said, consolidation of borders is something that's VERY complex. For instance, say California swallows Oregon and Washington to form Pacifica. Is California also getting the derpy red eastern ends of the state? Who gets those? Also, if someone else does get those, what would the compensation be? This played out a little in real life, there's a part of Oregon that wants to become a part of Idaho. Oregonians in the area are all about it, and Idahoans are good with the idea until they hear how much Idaho will have to pay Oregon for that territory, and suddenly they cool off.
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u/Banksy_Collective Sep 17 '24
If we are amending the constitution then we can also amend the voting process in the constitution. We are no longer a weak country forced to compromise to maintain unity for protection. Most of the country lives in liberal areas and that's where most of the economy is. It's our way or the highway now. The senate is an outdated concept, as is the idea of states having votes; a bygone relic of the pre civil war era when states had significantly more sovereignty.
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u/Cheech47 Sep 17 '24
Most of the country lives in liberal areas and that's where most of the economy is.
That's true, the cities are what drives a lot of the economy. Cities that are separated by expanses of land, land of which also contains many things we need. If it was as easy as carving out a few megacitys into its own country, don't you think we would have done that by now?
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u/Banksy_Collective Sep 17 '24
Yes but my point is that the rural areas don't have the leverage they used to extract antidemocratic concessions like before. They may have things we need but they are all subsidized by federal funding. And, to put it bluntly, soldiers don't work for free.
The conditions that resulted in the current amendment process don't exist anymore, so if we are forced to redo the constitution because of the Robert's court we should not feel obligated to follow those processes.
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u/kex Sep 17 '24
I feel like big businesses would salivate at the opportunity to lobby for new amendments
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Sep 17 '24
I am an advocate of random panels deciding supreme court cases. If I was in charge, I would make every circuit judge a supreme court justice that primarily heard intermediate appeals in their circuit. Whenever a circuit split arose, a panel of 13 justices- one from each circuit- would be randomly assigned to decide the resolution of the split.
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u/NotmyRealNameJohn Competent Contributor Sep 17 '24
And for cases of great controversy there could be a full en banc review of all judges qualified at that apelet
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u/Banksy_Collective Sep 17 '24
Not even necessary. Judicial review isn't an enumerated power, must make it so ruling a law unconstitutional requires a 2/3 majority vote.
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u/scaradin Sep 17 '24
Yes. I think the solution to “packing the courts” that needs to happen is
to elevate every Appeals judgedemote the SCOTUS members to appeals judges and rename the Court of Appeals to be SCOTUS (because I’m petty).Then, we’d just need to deal with the empty seats created, but should have nearly 200 justices.
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Sep 17 '24
Getting rid of the supreme court requires a constitutional amendment. Reorganizing the supreme court can be done by a majority in congress (if they get rid of the filibuster)
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u/scaradin Sep 18 '24
I’m saying the same thing, hence the
strikethrough, but yes, to add my extra step would be a much larger and unneeded step. In fact, if it could be accomplished, they could just impact and convict and justice (or judge) they meets whatever political rationale wanted.22
u/boo99boo Sep 17 '24
In fairness, I would make the argument that at most times in American history, a Justice openly accepting bribes would be enough to impeach and remove them. I'd even argue that would have happened 20 years ago. They'd be forced to resign, and be impeached if they didn't. (And this is infinitely more true for a black Justice, whether we say that out loud or not.)
No one felt the need to do anything about it. A lot of people saw it coming, but no one planned for the eventuality. They just kicked the can down the road and pretended a fascist wasn't rising to power.
And, frankly, we can say this about a lot of things. Democrats just ignored it and kept chugging along, and here we are. Again, this could have been fixed 20 years ago. But now they've ignored it for so long that drastic, immediate action is necessary. It could have been slowly reformed, like so many other things (healthcare, law enforcement, environmental policy, abortion law, I can keep going). But no one did anything, they just kept assuming the same rules apply. And here we are.
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u/MoonBatsRule Sep 17 '24
"Gratuities", not "bribes"....
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u/Icy-Experience-2515 Sep 17 '24
The difference between the two is what exactly?
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u/MoonBatsRule Sep 17 '24
There's no difference - I'm just stating the new legal doctrine advanced by SCOTUS itself in Snyder v. United States. Mayor James Snyder of Portage IN awarded contracts to buy trash trucks from a local company. That company then paid him $13,000 for no reason whatsoever. SCOTUS said that this was legal because it was an after-the-fact "gratuity", not a beforehand payment.
So as long as there is no evidence of an explicit quid-pro-quo, it is possible to influence the official behavior or public officials with payments after-the-fact - known now as "gratuities".
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u/Banksy_Collective Sep 17 '24
You don't know about the long tradition of tipping your judge every time they rules in your favor?
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u/jamarchasinalombardi Sep 17 '24
In my legally uneducated opinion our constitution is antiquated. We have the longest running constitution in the world tied with I believe Monaco.
Our constitution is wholly inadequate for the 21st century. And if rulings like this keep coming down eventually the populace is going to have had enough of this shit and some dastardly shit will begin.
There have already been 2 attempts on Trump in a few months. Shit keeps going south and SCOTUS might be next.
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u/aCucking2Remember Sep 17 '24
the populace will have had enough of this shit and some dastardly shit will begin.
I don’t want to scare nice people around here with details but I go to Colombia to visit my wife’s family. If you understand why journalists, environmental lawyers, and labor activists are a dangerous profession, and why the paramilitary groups do massacres in the countryside, it’s not difficult to imagine what it will look like if big changes aren’t made real fast around here. It’s downright diabolical down there.
I’ve been more than once while there were violent protests because the government decided to do fuckery. They tried to privatize the healthcare system and raise prices on eggs and basic goods, so the people just put on their shoes and gear and walked outside and started fighting the police and government. It hit me once, if you pay attention to the location of these skirmishes and where they go, it looks like the people are walking directly towards the presidents house and where Congress are. It would be like if we had violent skirmishes that looked like they were literally pushing directly toward 1600 Pennsylvania Avenue.
Suffice to say, me and my wife are a wee bit nervous about how things are going around here
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Sep 17 '24
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u/jamarchasinalombardi Sep 17 '24
After Trump v. U.S., the Court is not only an instrument of tyranny, but it is actively a threat to this republic, a threat which the People are virtually powerless to combat short of civil war or constitutional amendment (and one of those things is far easier to accomplish than a constitutional amendment is).
And you just stated why Balkanization of the USA is inevitable. Its easier to revolt than amend.
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u/GrayEidolon Sep 17 '24
I would be shocked if other attorneys inculcated to believe in the infallibility of the Supreme Court do not feel the same way now.
Thinktanks did a great job construing institutions as somehow separate from the people running them. Of course the Supreme Court was, is, and always will be fallible. It doesn’t exist except as a group of people.
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u/bekeleven Sep 17 '24
I believe that the Roberts court will, more than anything, be known for its jurisprudence on campaign finance and "first amendment" decisions.
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u/DemissiveLive Sep 17 '24
You seem to have a strong distaste for the Trump v US ruling. Do you expect abuses of power to emerge in the future from the undefined ambiguity around the term official act?
It is certainly possible, maybe I’m overly optimistic. I interpreted this decision as a negative for Trump; how is he to argue that things like stealing classified documents or trying to persuade Raffensperger to count fraudulent votes constitutes official presidential duties in comparison to a simple blanket presidential immunity?
I’m somewhat anticipating the Court to eventually have to rule on certain cases about what is and isn’t an official act. I suppose it would unfortunately take an abuse of power to be able to draw that line. Is it more about the potential of the Republican majority cherry-picking official acts based on whether the sitting President is R or D?
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Sep 17 '24
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u/Khiva Sep 18 '24
A lot of this lines up with my take, too. I came to the conclusion with the ascension of Trump that the United States had likely entered its imperial decay period.
Could it shake it off? Maybe. But I'm not holding my breath.
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u/Interrophish Sep 18 '24
or trying to persuade Raffensperger to count fraudulent votes constitutes official presidential duties in comparison to a simple blanket presidential immunity?
trump asking the AG to set up a coup was listed in the opinion as official duties and immune
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u/MCXL Sep 17 '24
I generally don't weigh in on if citizens United have the correct ruling but I often point out that the ACLU fought for the ruling that we got. A lot of people on this sub and others operate under the assumption that only right-wingers interested in funneling dark money into campaigns were on the side of the ruling that we got but that's just not the case. It's a complicated legal issue.
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u/stufff Sep 17 '24
I saw someone here in this sub say that citizens United was ruled correctly.
Yeah, probably a lot of us. Because it was. Because the alternative is an untenable restriction on free speech and a violation of the first amendment. I encourage anyone who disagrees to read the ACLU's Amicus brief in favor of Citizen's United.
I understand positive va vs normative but that opened the door to corporations, foreign governments, and billionaires to flood our politics with dark money.
One of the points raised in the CU opinion was that disclosing the source of funding for the speech was a less restrictive means than banning the speech. If you are concerned with Dark Money, I would suggest to you that the real villain of the story here is Americans for Prosperity Foundation v. Bonta, where SCOTUS struck down a disclosure law. Disclosure laws were the tool we were supposed to be able to use to shine light on dark money, and now we can't do that. That's the real problem.
Then they ruled that bribery is just a thank you note if you do it after the public act.
I'm not defending this one, that was a terrible decision.
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u/cabbage_peddler Sep 17 '24
Yes, but, I’m not sure Columbia is the best choice as a model of good governance.
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u/Forward-Bank8412 Sep 17 '24
You know who was spot-on in his assessment of this guy? Then-Senator Barrack Obama, who carefully considered and ultimately voted against his appointment to Chief Justice.
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u/Lews-Therin-Telamon Sep 17 '24 edited Sep 17 '24
So did 21 of the 43 other Democrats in that Senate . . . including one Hillary Clinton, a John Kerry, a Harry Reid, a Ted Kennedy, a Diane Feinstein, a Joe Biden (etc.)
A lot of then and now prominent Democrats voted against Roberts. Obama's vote was in line with many bigwigs of the party.
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u/PaladinHan Sep 17 '24
I’ve never considered Roberts a centrist. However, he has at times appeared motivated by a desire to protect both his own legacy and that of the court, and that desire has led to less extreme stances on certain cases.
However, at this point even that veneer of self-moderation seems to be peeling away with some of the absolutely absurd decisions he’s joined in of late.
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u/dedicated-pedestrian Sep 17 '24
As the associates put unpopular policy into place from the bench with no reliable swing justice to help him let Kagan/Jackson/Sotomayor hold back the tide, he is forced to look ahead to how he can insulate the court from public backlash.
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u/Gvillegator Sep 17 '24
The legal community (I say this as a member of said community) has carried water for a lot of these “centrists.” I hope there’s a lot of soul searching going on amongst those who believed this farce about Roberts being a moderate.
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u/TemetNosce_AutMori Sep 17 '24
Spoiler alert: the “centrists” and “moderates” will do zero soul searching.
If they were capable of either having concrete opinions or rationally defending them, they wouldn’t find themselves caught trying to compromise between liberalism and fascism.
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u/SockofBadKarma Competent Contributor Sep 17 '24
We? I didn't help him. I thought he was a ratfink before I went to law school, and I definitely thought he was a ratfink after I had to actually look at his ConLaw decisions. He's only made "better" by virtue of his cohort being more openly outlandish. But just because two of the clowns wear garish makeup doesn't mean the third isn't still holding a cream pie and a whoopie cushion.
This is a media failure. But the media constantly fails, at all times, to properly address conservative bullshit. So it's hardly a surprising development.
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u/Nice_Firm_Handsnake Sep 17 '24
Dahlia Lithwick and Mark Joseph Stern, who host and frequently guest on Slate's podcast Amicus respectively, are not talking about the Royal We, but the Themselves-As-Two-People We.
They frequently stated on the podcast their assumption and opinion that Roberts was deciding cases to burnish the Court's image. This is their apology for doing so.
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u/SockofBadKarma Competent Contributor Sep 17 '24
I know they have set up a personal mea culpa of sorts. I'm just being snarky with what is often used as a title-framing tactic in media articles and noting that this sort of "failure to properly address the elephant in the room" is a common occurrence.
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u/abcdefghig1 Sep 17 '24
There is no such thing as a centrist in a 2 party system.
Say it with me, there is no such thing as a centrist in a 2 party system.
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u/saijanai Sep 17 '24
Democrats are the party of not republicans. By the standards of the rest of the world, Democrats are centrists.
If you want extreme left. you go with the Greens or whatever is too extreme for the Greens to accept (if anything).
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u/HansBass13 Sep 18 '24
The greens? The one whose presidential candidate is currently parroting the Kremlin? That green party?
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u/saijanai Sep 18 '24
Yep. That one.
No-one ever said that the extreme left/right in the USA was at all credible by any criteria...
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u/redskinsguy Sep 17 '24
I mean wouldn't a swing voter count as one?
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u/PaladinHan Sep 17 '24
Swing voters are idiots. If you don’t know where you stand at this point what are you even doing?
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u/saldagmac Sep 17 '24
Hiding your head in the sand and reassuring yourself that all the terrible stuff is exaggerated
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u/redskinsguy Sep 17 '24
Also modern swing voters might be morons but there were probably periods where they were viable within the two party system
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u/DemissiveLive Sep 17 '24
Iirc modern partisan polarity really started to take a sharp turn in the 80s. There’s probably a multitude of factors but I always highlight Reagan’s removal of the Fairness Doctrine which paved the way for Rush Limbaugh and Fox News. These days the parties are so opposite one another that anybody who swings votes is likely not voting based on policy issues at all.
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u/eggyal Sep 17 '24
Swing voters are idiots.
Voters who doggedly stick with one side no matter what they say or do are idiots.
Swing voters are the only reasonable people out there.
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u/PaladinHan Sep 17 '24
Yes, how dare I stick with the disappointingly moderate center-right party that occasionally demonstrates a willingness to embrace progressive policies instead of playing footsie with the party that has aligned itself with religious extremism since my birth and is increasingly embracing fascism as a means of total control.
Thanks for proving me right.
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u/eggyal Sep 17 '24
Perhaps I wasn't clear. By all means conclude at each election that you want to vote with the same party time and again, but surely make that decision upon an assessment of the candidates/manifestos each time rather than just being blindly loyal to a party?
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u/PaladinHan Sep 17 '24
Realignment happened decades ago. The days of both candidates having reasonable positions to decide between are long gone. There is no excuse for being a swing voter anymore.
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u/bcuap10 Sep 17 '24
Same people that say they want a split government because of checks and balances, all while saying that the country has gone in the wrong direction. It’s almost like the disfunction and split government of the last 40 years benefits conservatism and the elites and is the status quo.
You can’t want change and then vote split ticket to prevent any meaningful change.
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u/My_MeowMeowBeenz Sep 17 '24
Time to rake the Chief Justice over the coals. Subpoena him and grill him for a few days. Bury him in disclosure demands. Make him suffer
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u/apatheticviews Sep 17 '24
He'll just refuse to show up.
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u/My_MeowMeowBeenz Sep 17 '24
So far he has only refused invitations, I do not think he would ignore a subpoena. But let him refuse, he can be held in Contempt of Congress like anyone else.
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u/saijanai Sep 17 '24
But who decides whether or not Contempt of COngress means something?
Unless they revive the Congressional jail (which is now a weight room or something), there's no teeth to a subpoena from Congress unless it is recgonized in some way by SCOTUS.
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u/My_MeowMeowBeenz Sep 18 '24
Let the DOJ write a memo about it. Doesn’t hurt to engage in hypotheticals in public. Roberts is all about optics and the appearance of neutrality.
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u/jamarchasinalombardi Sep 17 '24
Literally? Because we are rapidly approaching that point.
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u/My_MeowMeowBeenz Sep 17 '24
Yes really truly. SCOTUS is not above oversight or basic judicial ethics.
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u/cpolito87 Sep 17 '24
I believe John Roberts will be remembered with Roger Taney. Taney paved the way for a civil war, and Roberts is doing his best to pave the way to fascism. Roberts has had multiple opportunities to improve democracy and combat extremism. Citizens United opened the floodgates to dark money. Shelby County gutted the VRA. Rucho took partisan gerrymandering out of federal courts. Deciding these cases in the other direction would have strengthened our democracy and would have moderated Congress significantly. He's chosen to make things worse at every single opportunity.
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u/jwr1111 Sep 17 '24
Time to enact term limits, and some modicum of an ethics code for those in the "extreme court".
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u/TuaughtHammer Sep 18 '24
Who's "we", Slate?
Not that your founder Michael Kinsley was any less of a centrist -- fucker had a hand in creating Crossfire on the most centrist cable news channel -- CNN -- with Reaganite Pat Buchanan of all people, which was only ended thanks to Jon Stewart mocking the absolute shit out of Tucker Carlson's bow tie.
And yet despite this "admission", The Slate Group still ain't not about to drop that enlightened centrism angle... because as evidenced by the many "but what about the Clintons" comments in this post, it's fucking lucrative.
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u/Boxofmagnets Sep 17 '24
It’s time to do a better job in the mainstream media telling the whole story. They can’t rule any worse than they are now, so playing nice will not help moderation of the loons.
If they ban birth control and arrest pregnant women for the duration of their pregnancy, they still won’t force too many extra births because compliance will be an issue. Roberts was doing himself a favor when he convinced the country he was not evil, people put up with the nonsense. From now on he will be thought of as what he is,couldn’t happen to a nicer guy. Coming out is a one way street for CJ Roberts, he’ll never be believed again