The Definitive John G. Roberts Thread

[Sauron]

More problems with the current nominee:

http://www.washingtonpost.com/wp-dyn...081500539.html

The Supreme Court's conclusion that "the Constitution prohibits such a moment of silent reflection -- or even silent 'prayer' _ seems indefensible," Roberts wrote in a memo to White House counsel Fred Fielding.

And here is John Roberts, the alleged judicial process wonk, ignoring the process:

Earlier, in a June 4, 1985 memo, Roberts argued that White House officials could exploit the Supreme Court's decision prohibiting school prayer. While justices struck down an Alabama statute mandating a one-minute moment of silence, "careful analysis shows" it was on technical grounds, he said.

Roberts said that a majority of justices would allow a similar law if it were worded more carefully to avoid expressing a religious purpose behind the measure.

The Alabama law was struck down because of the "peculiarities of the particular legislative history, not because of any inherent constitutional flaw in moment of silence statutes," Roberts wrote in a memo to Fielding regarding the Supreme Court decision in Wallace vs. Jaffree.

And finally:

"If the justices truly think they are overworked, the cure lies close at hand," he wrote at a time when Chief Justice Warren Burger was calling for creation of a new tier of appeals court.

He suggested the members of the Supreme Court abdicate the "role of fourth or fifth guesser in death penalty cases" to lighten their workload.

In other words, Texas would still be allowed to execute underage minors and retarded people.


This op-ed from the Post's William Raspberry sums it up nicely:

In a word, no. I've just looked at something I wrote on the subject more than a dozen years ago, and I'm not sure I'd change a word of it now:

"Certainly it is within the prerogatives of presidents to name to the federal judiciary men and women whose views are more or less consistent with their own. But it is also within the bounds of good government to keep the courts -- and the Supreme Court in particular -- generally reflective of the populace. It's just another way of legitimizing the judiciary.

"Presidents used to understand that (although their idea of what was 'reflective' of America was more likely to embrace ideology than race or gender). Not only did the fairly conservative Eisenhower appoint Earl Warren; the conservative Nixon appointed [Harry] Blackmun, who authored the Roe v. Wade opinion, and the liberal Kennedy appointed [Byron] White, who dissented from it. It was once a matter of good sense -- FDR's court-stacking attempt notwithstanding -- to keep the court within some sort of rough political balance.

"Only in fairly recent times has the Supreme Court come to be viewed as part of an ideological spoils system."

[D. Scarlatti]

There's a video clip at The Daily Show's homepage entitled, "John Roberts is either a mad bomber of abortion clinics or a homo-tastic friend of the sodomite," but my browser closes every time I try and download it.

Damn you William H Gates III, damn you to hell!

[viscousmemories]

Originally Posted by D. Scarlatti

[...] my browser closes every time I try and download it.

Too bad for you; it's hilarious.

First he ridicules NARAL for their televison ad, joking that if Roberts is culpable in the clinic bombing because of a comment in a brief he wrote 7 years earlier, anyone who bought Michael Jackson's Thriller in 1982 is culpable in the accusations of child molestation against him. He adds, "Facts are no match for insinuating voiceover lady!"

Then he goes on to ridicule that right group whose name I can't remember for refusing to support him on the grounds that he did pro bono work for gay activists, saying "Who hasn't had at least one pro bono homosexual experience? That's what law school is for."

[Ensign Steve]

Is he right, D?

[D. Scarlatti]

I wouldn't know - I slept through all my classes. Can't you tell? It's taken me a week to brief one case.

[D. Scarlatti]

In the meantime and in between time,* from findlaw.com, lawyer and academic Elaine Cassel reflects on how the Court's death penalty jurisprudence may be affected by the presence of Associate Justice Roberts:

On one hand, he is a staunch Catholic and the Catholic Church has often taken a stand against the death penalty.

On the other hand, in a February 1983 memo written while he worked in the Reagan White House, Roberts depicted Supreme Court death penalty appeals as, put bluntly, an annoyance and waste of time. He pointed out that the Supreme Court could significantly reduce its caseload "by abdicating the role of fourth or fifth guesser in death penalty cases."

How Will the Supreme Court's Death Penalty Jurisprudence Change?

* As the late, great Ed Whalen used to say, signing off from Calgary's Stampede Wrestling.

[D. Scarlatti]

This is difficult to explain, but since I started, I better try and finish it.

Death penalty cases involve a combination of state and federal law. As some wag put it, the protections afforded criminal defendants by the U.S. Bill of Rights are the floor, not the ceiling. In other words, states are free to pass and enforce even more stringent protections.

In its Eighth Amendment (cruel and unusual punishment) analysis, the Supreme Court has said that the death penalty is "profoundly different" than non-capital sentences, and that capital defendants need be treated with a "degree of respect due the uniqueness of the individual."

Having said that, states do retain a certain amount of discretion in constructing their death penalty systems. One of the issues in this case is whether California is a "weighing" or a "nonweighing" state. The difference has to do with if and how the jury applies aggravating versus mitigating factors when arriving at the sentence. In most, if not all DP states, homicide itself is not enough to trigger eligibility for the DP. There needs to be additional, aggravating factors.

In nonweighing states, so long as the jury finds at least one aggravating factor, the subsequent elimination on appeal of an additional aggravating factor may be seen as "harmless error" on the part of the trial court. This is because, in nonweighing states, balancing aggravating against mitigating factors is not part of the sentencing equation.

However, in a weighing state, which California purportedly is, as the 9th Circuit put it, "A serious concern about whether a death sentence is truly individualized arises when a jury decides to impose a death sentence based on its own assessment of aggravating and mitigating factors, and an appellate court later declares some or all of those aggravating factors legally invalid," which is precisely what happened here: the CA Supreme Court invalidated two of the four aggravating factors the trial court jury found against Sanders, but upheld the sentence nonetheless.

So according to both CA and federal precedent, Sanders had to prove to the 9th Circuit that 1) CA is a weighing state; 2) CA didn't conduct a proper review after eliminating some aggravating factors; and 3) failure to conduct the review resulted in a "substantial and injurious" effect on his sentencing. The 9th Circuit held that Sanders met his burden on all three elements.

There's a bit more to it than that, most of which has to do with the 9th Circuit's deconstruction and legal analysis of those three arguments. At any rate, California has appealed the 9th Circuit's decision, and Associate Justice Roberts will have to deal with the issues later this year, despite the fact he apparently believes Supreme Court review of state death penalty cases is a pain in the ass.

That, incidentally, is a very Scaliaesque attitude. Much of what Scalia has written has always struck me as an argument that he should do as little as possible at his job, which, apparently, is something only a Supreme Court Justice can get away with, and be congratulated for.

[D. Scarlatti]

I was hesitant to delve into the Court's other two abortion-related cases, Scheidler v. NOW and Operation Rescue v. NOW, since they involve allegations that "pro-life" protesters violated provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), a complex area of law that is practically a specialty unto itself.

But in light of a decision by the 9th Circuit yesterday that contained the following language,

Though the dissent is wrong to suggest that our approach would confer standing on any plaintiff RICO-suave enough to allege lost employment, it is right to point out that our approach allows more claims to go forward than its more restrictive theory[,]

I may delve anyway, if only to join in the fun.

[Ensign Steve]

Did they really say Rico Suave?

[D. Scarlatti]

They did indeed.

Senator Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, published this statement about Judge Roberts yesterday:

Although the Bush Administration still refuses to provide the most important examples of Judge Roberts’s policy views from his tenure as the politically appointed Principal Deputy Solicitor General, we have been able to review thousands of pages of documents that have been provided by the National Archives and Records Administration in response to earlier public requests.

Those papers that we have received paint a picture of John Roberts as an eager and aggressive advocate of policies that are deeply tinged with the ideology of the far right wing of his party then, and now. In influential White House and Department of Justice positions, John Roberts expressed views that were among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy, and access to justice. [. . .]

The White House is steadfastly refusing to follow past precedent and allow Senators to review a good deal of the most relevant material from his work in the Executive Branch. By doing so they raise the inference that there is much to hide. They leave Judge Roberts with a heavier burden to carry during his upcoming hearings before the Judiciary Committee.

On The Recent Documents Relating To The Roberts Nomination

I can't wait for September 6!

[D. Scarlatti]

At findlaw.com, Edward Lazarus thoughtfully defends the Justice Sunday II panderers:

There may well be some close cases in which it would be better for the justices to give the benefit of the doubt to the judgment of elected officials, rather than override that judgment by a single vote. For example, the Court sometimes votes 5-4 to strike down legislation even though the five justices in the majority do not themselves agree on the reason why the law at issue is constitutionally infirm. Such splintering may well present a reasonable occasion for giving an added modicum of deference to the judgment of elected officials.

Some of the Critique of "Justice Sunday II" Rings True, Regardless of One's Politics

And the NYT editorial to which he refers:

Justice Sunday Reloaded

[viscousmemories]

Thanks for those links, Scarlatti. That Findlaw article was particularly interesting. I liked this:

Members of Congress, too, take oaths to uphold the Constitution. They ought, therefore, to honor them - rather than passing unconstitutional legislation and leaving the judiciary to clean up the mess.

As matters stand now, Congress does little self-policing and implicitly encourages the judicial branch to do all the hard constitutional thinking about the limits of congressional power and the meaning of our Constitution. In short, Congress itself has played a role in creating the public perception that all wisdom does indeed reside with the Supreme Court's nine justices.

[D. Scarlatti]

Another interesting point Lazarus raises is whether plurality opinions should carry with them the force to overturn legislation. Plurality opinions are those where a majority of the Court agrees with the outcome, but not the reasoning that leads to that outcome.

When a judge writes an opinion, her colleagues have the choice to join, dissent, or concur (or recuse themselves, in special circumstances). When they join the opinion, they agree with both the disposition and the reasoning behind the disposition. When they concur, they agree with the disposition, but not the reasoning. When they dissent, they agree with neither.*

There have indeed been many decisions, particularly on the Rehnquist Court, where there has not been majority agreement on both the outcome and its reasoning. So in some cases, the whim of the democratically elected legislature has been thwarted by not only five of nine judges, but sometimes only four, or even three judges out of nine, taking into account both the judicial outcome and its underlying reasoning.

That's one of the circumstances under which Lazarus believes Dobson and his friends have a valid objection.

Radical!

* It's also possible to agree with the reasoning, but not the outcome, depending on one's attitude toward precedent, and ways of interpreting the Constitution, according to "original intent" and so on.

[D. Scarlatti]

"[Roberts is] a person who understands what it means to be a strict constructionist, somebody who looks at the words of the Constitution for what they are, somebody who will not legislate from the bench," Bush said in Atlanta shortly after nominating Roberts on July 19.

Legal Terms at Roberts Hearing May Confound

[D. Scarlatti]

If questions of this sort are answered candidly, the Senate and the nation will learn a great deal. The problem, of course, is that any nominee to the Supreme Court will be exceedingly well prepared and will be tempted to use tactics of evasion and obfuscation -- as, for example, by saying that he will follow the law, that he has no agenda, that he believes in judicial modesty and that he will be faithful to the Constitution.

Roberts should be expected to do much better than that. Platitudes and evasiveness do not serve the democratic process.

What To Ask Roberts, by Cass Sunstein

[D. Scarlatti]

John G. Roberts: One Stop Shopping

Compiled by the beneficiaries of a constitutionally permissible affirmative action recruiting program.

And from The Onion:

Genie Grants Scalia Strict Constructionist Interpretation Of Wish

WASHINGTON, DC—A genie freed from a battered oil lamp by Supreme Court Justice Antonin Scalia granted the conservative jurist a strict constructionist interpretation of his wish for "a hundred billion bucks" Monday. "Sim sim salabim! Your wish is my command!" the genie proclaimed amid flashes of light and purple smoke, immediately filling the Supreme Court building with a massive herd of wild male antelopes. When Justice Scalia complained that the "bucks" had razed the U.S. Supreme Court building, trampling and killing several of his clerks and bringing traffic in the nation's capital to a standstill for hours, the genie said, "Your honor, your wish is a sacred and unalterable document whose interpretation is not subject to the whims of society and changing social context."

[D. Scarlatti]

The Republicans plan to call the following witnesses:

[ . . . ]

Jay A. Sekulow, chief counsel for the American Center for Law and Justice.

Parties Provide Lists of Witnesses for Roberts Hearings

[D. Scarlatti]

''I am honored and humbled by the confidence the president has shown in me,'' Roberts said, standing alongside Bush in the Oval Office.

They're always "honored and humbled."

Saves another set of Senate hearings anyway. Unfortunately the hearings that were to begin tomorrow will likely be delayed.

Bush Nominates Roberts to Be Chief Justice of Supreme Court

[viscousmemories]

Is there anything shocking or scary about this nomination? Is "Chief Justice" a figurehead or does the role have some real authority that shouldn't be granted to an unknown quantity?

[Joshua Adams]

Originally Posted by viscousmemories

Is there anything shocking or scary about this nomination? Is "Chief Justice" a figurehead or does the role have some real authority that shouldn't be granted to an unknown quantity?

The Chief Justice has a few extra responsibilities, like first dibs on the majority opinion, and swearing in Presidents. It's actually unusual for a sitting Justice to be elevated to Chief, so it's not surprising that Roberts was selected (after all, he must have been Bush's first viable choice for a new member of the Court, so why would he give the spot to someone else?).

[viscousmemories]

Thanks for the info, Joshua. Wikipedia has a good entry as well.

[D. Scarlatti]

I think law clerks have far more influence over the Justices than does the C.J. Maybe we should start holding Senate hearings for those little brats.

[Strict Separationist]

Originally Posted by D. Scarlatti

When they concur, they agree with the disposition, but not the reasoning. When they dissent, they agree with neither.

A concurrence is generally assumed to be a full agreement with the reasoning insofar as it's stated, frequently with some additions or qualifications. If a majority opinion garners five votes and four of the Justices write regular concurring opinions, the opinion of the Court is a majority opinion. The place where pluralities come into play is when you start in on special concurrences, which mainly consist of opinions "concurring in the result."

* It's also possible to agree with the reasoning, but not the outcome, depending on one's attitude toward precedent, and ways of interpreting the Constitution, according to "original intent" and so on.

And if that's where a Justice is, s/he publishes a dissent. Concurrences or dissents are defined narrowly by which way the opinion comes down on the outcome. And, of course, it is not possible to literally agree with the entirety of the majority's reasoning and yet disagree with the outcome, as part of the (expressed or implied) reasoning of any majority opinion has to be that there is no precedent on point, or that existing precedent supports (or at least does not bar) the result reached, or that existing precedent is invalid.

[D. Scarlatti]

Originally Posted by Strict Separationist

A concurrence is generally assumed to be a full agreement with the reasoning insofar as it's stated, frequently with some additions or qualifications.

Says who?

[Strict Separationist]

Originally Posted by D. Scarlatti

Says who?

Well, by way of example, would you consider Justice O'Connor's opinion in Grutter v. Bollinger to be a majority opinion? How about Justice Kennedy's opinion in Lee v. Weisman? Breyer's opinion in Stenberg v. Carhart? Brennan's opinion in Texas v. Johnson? Souter's opinion in McCreary County v. ACLU? The per curiam opinion in Bush v. Gore?

I think it's safe to say that all the opinions I cited above are in fact majority opinions, but in all of these (5-4) cases, one or more regular concurrences were filed. If an opinion is designated "plurality," a special concurrence of some sort is involved, and such special concurrences are nearly always labelled as such.