VFR on John Roberts in 2005—Part VI

The most plausible explanation I’ve seen of the motivation for John Roberts’s bizarre majority decision on Obamacare is that he did not want the Court to overturn a landmark piece of legislation by a divided vote, as that would be seen as a partisan act by the Court and so harm its prestige, as its prestige was also harmed (so he believed) by its divided decision in Bush v. Gore.

Keep that thought in mind while reading the entry I wrote about Roberts on September 13, 2005:

Save us from “open-minded” judges!

“I have no platform,” John Roberts told the Senate Judiciary Committee yesterday. “I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind.”

Any conservative who feels assured by such a statement is not being attentive to the meaning of words. A thoughtful judge, a thoughtful person, is not equally “open” to any idea that comes along; he is expected already to have a framework of established understandings, precedents, principles—including the very meaning of the words that are being used—to guide him. If a litigant argued, say, that the Constitution really means that the death penalty is cruel and unusual punishment, or that the federal government can take over all state legislative functions, or that the Constitution is supposed to be interpreted so as to be in conformity with current moral and social attitudes in Europe, would Roberts be “open” to such an argument? How can judges decide on the rightness or wrongness of any case, and have their judgements be seen as legitimate by the community, unless there are settled standards by which to make a judgment, in other words, unless there are certain matters that are not open?

Only a judge who has no principles, and who is ready to drift wherever fashion or expediency takes him, would say that he confronts every case with an “open” mind. It’s a statement that could be made only by a liberal relativist.

Now let’s apply my 2005 analysis of Roberts’s mindset to his action on Obamacare. Two factors structured his thinking in the case: (1) expediency, namely his non-judicial concern for the prestige of the Court, the protection of which required that the Court leave Obamacare in place; and (2) his complete openness as to matters of constitutional principle. Thus, in the name of expediency (the perceived need to approve Obamacare), he concocted out of thin air the notion that the penalty for not obeying individual mandate was really a tax, and thus allowed to the Congress under the Constitution.

In 2005, while virtually the entire conservative movement was cheering for Roberts’s approval as Associate Justice and then Chief Justice, I identified the factors that would ultimately lead him to write one of the most outrageous decisions in the history of the Supreme Court.

- end of initial entry -

Ed H. writes:

John Roberts declared that he had no “overarching” philosophy. What he meant to say was that he was not aware of having a philosophy. He is a blind adherent to modern liberalism, and not aware of it because it’s the total environment he exists within. Likewise we can assume that fish have no name for water because they would have to know something different before they could know what water is. Roberts knows nothing else but the Washington circle of politics, Ivy league schools and the desiccation of the legal world.

Thomas Jefferson was a lawyer, and hated it, and he said he hated. Jefferson vacationed from the legal world as often as possible by reading philosophy and history and he engaged in a lifelong philosophical quest. “What did Socrates mean by ‘daemon’?”, Thomas Jefferson speculated. What does Roberts speculate about? I want to know. Where does Roberts go for intellectual respite? The New York Times? He boasted that he had no core causes, but then assured us he was “committed.” No one in Washington thought to ask the Supreme Boy Scout what he could be “committed” to, since according to himself he believes in nothing.

July 2

Hannon writes:

Thanks so much for posting this entry.

It seems I have waited a long time to see such an argument from you, articulated just so, that I can deploy to counter a friend’s political “reasoning.” He is the dispassionate type who will refrain with studious rigor from having an opinion about a given subject, perhaps something in an article I’ve sent him on a contemporary event. He is rational and has a very good mind for science and is extremely intelligent, but seems to fail to see that the scientific method does not apply to the humanities. This ironically from someone who convinced me that sociology and historiography are not real sciences (though they have value of course) because they cannot be falsified, etc. I don’t need to tell you how frustrating it can be to try to have a meaningful argument with someone who will not (or cannot) assign meaningfulness to the subject at hand or its underlying principles.

Posted by Lawrence Auster at June 30, 2012 03:40 PM | Send

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