Share

Despite different philosophies, justice committed to independence of Supreme Court

 

7-9-2020

The Republican-led Senate, in cooperation with the Trump administration, has made a concerted effort to appoint conservative judges to the federal courts.  Most notably, Mitch McConnell refused to consider Merrick Garland’s Supreme Court nomination, holding the seat open for President Trump to fill.

            Trump has appointed two conservative justices to the Supreme Court: Neil Gorsuch and Bret Kavanaugh, and has counted on their support (along with the other three conservative justices).

            The Supreme Court has ruled on several politically charged issues this spring, and more are in the pipeline. Chief Justice John Roberts has surprised and disappointed President Trump by siding with the liberal bloc in cases regarding gay and transgender rights, immigration and abortion.

            Steve, do you agree with President Trump that these decisions are “shotgun blasts into the face of people who are proud to call themselves Republicans or Conservatives?” And do you believe that Supreme Court justices have a stronger obligation to support precedent, independence of the court and the merits of each case, or to concur with their fellow-conservatives or liberals?

 

Steve Clark

            Many conservatives agree with President Trump’s characterization that recent Supreme Court decisions are “blasts to the face” of a majority of Americans.

            Conservative anger focuses mostly on Chief Justice John Roberts, who has been the swing vote in a number of important cases but who seems to have abandoned his conservative principles.

             Roberts is perplexingly mercurial in his stances. He seems reliably conservative on small issues, but on the big ones like immigration and abortion, he swings unpredictably to the other side.

            On abortion, Roberts got off to a good start in 2007 with his concurrence in Gonzales v. Carhart, which banned partial-birth abortions. He stood on solid ground in 2016 in his descent from the Whole Woman’s Health v. Hellerstedt ruling, which overturned Texas restrictions on abortion clinics.

            Then just this month, in a case in which he was the swing vote, Roberts reversed himself by voting to overturn a Louisiana law that was a virtual mirror image of the Texas law he favored in 2016, outraging pro-life proponents.

            The same pattern has been seen with his votes on immigration. First, he voted that the president has exclusive authority to set immigration policy, but since then has voted twice against the President, once on DACA and once on the the border fence, while at the same time voting that the president has authority to divert Pentagon construction funds to help build the border wall.

            One could get seasick watching Roberts’ flip-flops. In the end, conservatives no longer trust the man and would like to see President Trump replace him with someone more reliable. I’ll bet you disagree, Alison.

 

Alison Anderson

            First, I should mention that Supreme Court justices are appointed for life—they may choose to retire, or Congress can impeach them for corruption, but President Trump cannot “replace [Chief Justice Roberts] with someone more reliable.”

 

         “Reliable” is an adjective, in fact, that I would use to describe Justice Roberts. He reliably asserts that the courts must maintain their independence from the political fray, that justices must not be used as political pawns, and that the Supreme Court should not become an activist institution.

            Justice Roberts has also reliably maintained that rigorous scholarship and solid reasoning must be behind arguments before the court; he has implied in his opinion on the DACA case that although he might be inclined to support the president’s position, Mr. Trump’s attorneys have not presented arguments that could justify the court in doing so.

            The history of the court is rich with examples of justices who surprised the presidents who nominated them. Chief Justice Earl Warren disappointed Dwight Eisenhower with his leadership in civil rights and liberties; William Brennan (another Eisenhower appointee) became a champion of women’s rights. 

            Often, once judges or justices are appointed for life, they take their responsibilities seriously; they measure each decision rigorously, knowing that it may profoundly affect our society for many years to come.

            They probably care more about the way they’ll be perceived in the future than in the present.  Decisions are not uniformly wise (Citizens United comes to mind) but they are considered in a very erudite way—in contrast to the way Mr. Trump considers his statements on Twitter.

 

Steve’s response:

          Expecting “reliability” from Supreme Court Justices isn’t exclusive to conservatives. Imagine the anguished cacophony that would issue from liberals if Justice Ginsberg suddenly voted against abortion or if Justice Sotomayor were to vote in favor of the border wall.

            Robert’s explanation for his Louisiana vote is tortuously plausible. He said that because the court struck down the nearly identical Texas law he felt obligated by “precedent” to vote down the Louisiana law.

            In an ideal world, the Supreme Court would be completely apolitical and socially blind. But in the real world, the Supreme Court is just as ideologically split as the rest of the nation. It’s inconceivable and would be totally unconventional for a president to appoint a justice who didn’t support his ideology.

            Roberts, appointed by George W. Bush, tends to wobble in his conservatism just as “W” wobbled a bit in his. Abortion, immigration and gender are considered sacrosanct moral issues by most conservatives. When a supposedly conservative justice votes the other way on these, it is morally repugnant to conservatives.

            Polarization of the court is as dangerous to that institution as it is to the nation, but that is today’s reality. I wish Roberts had voted the other way in the Louisiana case. It was the perfect opportunity to remedy the court’s decision on the Texas law. Nonetheless, I respect his logic, if not the outcome of his vote.

            Since justices are appointed for life, there’s nothing anyone can do about it, and for the sake of the integrity of the institution, that’s exactly the way it should be.

 

Alison’s response.

          I agree with your conclusion.

           The court, whether led by a conservative or liberal-leaning justice, tends to take a measured pace in changing the way laws are interpreted.  Given our polarized political climate, inertia can be a stabilizing force. And in looking at issues before the court, I think it is important to understand that whatever views the justices personally and morally hold, the legal arguments that are presented to them are thornier than these simple “right and wrong” questions.

            For instance, Steve, you state that Roberts “flip flops” on immigration because he ruled that the president could divert construction funds from military projects to the border wall, but against Trump’s initiatives to abolish DACA.  In fact, you claim that “immigration is considered a sacrosanct moral issue by most conservatives” (along with abortion and gender). 

            First, many fiscal conservatives who have lived abroad are welcoming to immigrants and consider it their human responsibility to help refugees and minorities to find safety here.

            A Supreme Court justice may not see immigrants (even those who enter illegally) as a moral threat, although she will likely want immigration to be handled in accordance with constitutional laws. We are, after all, a nation of immigrants.

            DACA provides a way for the children of immigrants to obtain work, education and citizenship, paths to success that Americans value. Justice Roberts may not approve of the law, but may stop short of abolishing it, particularly for “arbitrary and capricious” reasons.

            In a time of extreme impulsivity in the executive branch, and acrimonious party divides in the legislative branch, the congeniality and respect for the rule of law in the judicial branch of our government is a refreshing and needed reminder of the way our institutions should operate.