Thinking Citizen Blog — Swing Voter since the Kennedy Retirement in 2018
By: John Muresianu
Tags: Supreme Court, USA, Law, Thinking Citizen Blog, Judiciary

Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day

Today’s Topic — Chief Justice John Roberts (1955 -) Swing Voter since the Kennedy Retirement in 2018

Roberts is one of the six Roman Catholics sitting on the Supreme Court today — the others are Alito, Barrett, Kavanaugh, Sotomayor, and Thomas. (Neil Gorsuch grew up Catholic but is now a practicing Anglican.) Two of the Justices (Breyer and Kagan) are Jewish. This is to me a remarkable fact given that the Supreme Court was once the preserve of Protestants. Today, a few notes on a “conservative” (appointed by George W. Bush in 2005 to replace Sandra Day O’Connor) who has often sided with the Court’s four liberals in key decisions. Experts — please chime in. Correct, elaborate, elucidate. This is the second in a series on the sitting justices of the US Supreme Court.

BACKGROUND — Top Credentials, Private Practice and Public Service, Confirmation Votes

1. Irish-Welsh father, Slovak mother; attended Catholic schools in Indiana, High school: 1st in class, Captain of the football team, regional wrestling champion. Harvard College, history major, summa cum laude, Phi Beta Kappa, Bowdoin Prize, Harvard Law School, managing editor, Harvard Law Review, clerked for Henry Friendly on the Circuit Court and then William Rehnquist on the Supreme Court.

2. Served in Reagan administration (1981–1986), private corporate practice (1986–1989) during which he did pro bono work for gay rights activists, joins George HW Bush administration (1989–1992), returns to private practice as partner at Hogan and Hartson (1992–2001), appointed to DC Circuit (2001) and then Supreme Court (2005) by George W. Bush.

3. Supreme Court nomination confirmed 13 to 5 by the Senate Judiciary Committee, with Schumer, Feinstein, Biden, Kennedy, and Durbin opposed. The full Senate vote was 78 to 22, with the Democrats split 22–22. Those were the days…

SWING VOTE EXAMPLES — Obamacare, Abortion, Gay Rights

1. Obamacare: On June 28, 2012, Roberts delivered the majority opinion in National Federation v Sebelius which upheld the Patient Care and Affordable Care Act by a 5–4 vote.

2. Abortion: “In 2018, Roberts and Bret Kavanaugh joined four more liberal justices in declining to hear a case brought by the states of Louisiana and Kansas to deny Medicaid funding to Planned Parenthood, thereby letting stand lower court rulings in favor of Planned Parenthood. Roberts also joined with liberal justices in 5–4 decisions temporarily blocking a Louisiana abortion restriction (2019) and later striking down that law (June Medical Services LLC v Russo, 2020).”

3. Gay Rights: having dissented in Obergefell (2015), he and Gorsuch joined the liberals in Bostock (2020) in which the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity.”

NB: Conservatives have accused Roberts of being a “legal gymnast” and playing “87-dimensional chess.” Liberals warn that he is not really moving in a progressive direction — he is just trying to preserve the Court’s power.

JOHN ROBERT QUOTES — the baseball umpire analogy, how to end racial discrimination, the judicial temperament

1. “It’s my job to call balls and strikes, and not to pitch or bat.”

2. “The way to stop racial discrimination on the basis of race is to stop discriminating on the basis of race.”

3. “I think judicial temperament is a willingness to step back from your own committed views of the correct jurisprudential approach and evaluate those views in terms of your role as a judge. It’s the difference between being a judge and being a law professor.”

NB: “By ensuring that no one in government has too much power, the Constitution helps protect ordinary Americans every day against abuse of power by those in authority.”

Two more for the road: (the second one gives a flavor for how Supreme Court justices typically opine)

1. “President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights.”

2.”The Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform. … It’s a principle that is easily stated and needs to be observed in practice, as well as in theory. Now, the Court, of course, has the obligation, and has been recognized since Marbury v Madison to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic.”

John Roberts

Roberts Is The New Swing Justice. That Doesn’t Mean He’s Becoming More Liberal.

John Roberts is now supreme court’s swing vote — to conservatives’ disdain

Behind closed doors during one of John Roberts’ most surprising years on the Supreme Court

https://www.aei.org/op-eds/supreme-court-swing-vote-whats-behind-john-roberts-legal-gymnastics/

Click here for the last three years of posts arranged by theme:

PDF with headlines — Google Drive

YOUR TURN

Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values. Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values. Or just some random justice-related fact that blew you away.

This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.