When he was running for president U.S. Senator Ted Cruz said he wouldn’t have appointed John Roberts to the U.S. Supreme Court.
If that’s so, maybe he had the right idea.
The chief justice sounded like a bureaucrat defending his hacks when he claimed last week that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Roberts was responding – in a way U.S. Supreme Court justices almost never do – to President Donald Trump’s criticism of an immigration-law decision by “an Obama judge” on the federal Ninth Circuit Court of Appeals, the famously left-wing branch of the federal judiciary on the West Coast that often renders extra-constitutional, ideology-based decisions on social matters.
Now, President Trump fulminating against a judge’s decision is nothing new. At this point it’s barely newsworthy. So why did Roberts feel the need to respond?
But more to the point: Why did he respond the way he did?
Roberts’s statement is nonsense.
The reason newspapers so often note which president appointed a particular federal judge is that it is so often a predictor of how the judge will rule. In the relatively rare cases when a judge seems to rule against the political persuasion of the president who appointed the judge, it sometimes becomes a man-bites-dog story.
But it’s not just political leanings that are discernible in many court decisions. It’s a willingness to ignore the plain meaning of the federal constitution in order to achieve whatever political or social outcome the judges want. Almost without exception, this is a left-wing phenomenon – or, more to the point, a Clinton-or-Obama-appointee phenomenon.
Who among us sees such decisions as not just wrong but illegitimate?
Why, Chief Justice John Roberts, way back in … June 2015.
Roberts’s dissent in Obergefell v. Hodges, the federal Supreme Court case that purported to legalize same-sex marriage throughout the country, didn’t just disagree with the majority. It dismissed the legitimacy of the five justices who signed it.
“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”
“The majority’s decision is an act of will, not legal judgment.”
“The right it announces has no basis in the Constitution or this Court’s precedent.”
“Just who do we think we are?”
“… as a judge, I find the majority’s position indefensible as a matter of constitutional law.”
“Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right.”
“Nobody could rightly accuse the majority of taking a careful approach.”
“The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to …”
“Those who founded our country would not recognize the majority’s conception of the judicial role.”
“… do not celebrate the Constitution. It had nothing to do with it.”
This isn’t the language of mere disagreement. It’s the language of contempt.
Three years ago, Chief Justice John Roberts found five of his colleagues in contempt of the United States Constitution.
As, indeed, they were. They weren’t “doing their level best to do equal right” to anything. They were just making up reasons to get a result they wanted.
What did these justices have in common? Four of the five were Clinton or Obama appointees.
What did the justices who voted against the decision have in common? All four were Republican appointees.
Now, which president made the appointment isn’t a predictor of every controversial decision by every judge. But in Obergefell it was eight out of nine.
And that’s the way it is over and over.
Motion for reconsideration, Mr. Chief Justice. You said something that everyone knows isn’t true – including you.
