On September 9, John Roberts, Chief ‘Justice’ of the United States Supreme Court, lamented that people were questioning the legitimacy of the Roberts Republican Court because of its “interpretations” of the Constitution: “If the court doesn’t retain its legitimate function of interpreting the constitution, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is”.
John Roberts’ hypocrisy and dishonesty are astounding. And they make crystal clear why people are questioning the legitimacy of the Court that he, and increasingly, Clarence Thomas rule. This fall, the Roberts Republican Court will be further eviscerating the body of the Constitution. But for now, let’s look at what the Court has done just to the Bill of Rights.
The 1st Amendment guarantees the rights of religious belief and expression. For those who may have forgotten, here is the actual language: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” Not very ambiguous. The Catholic Church, to which 6 members of the Roberts Republican Court belong, forbids its members, male and female, to have abortions.
In contrast, Judaism, one of the other Abrahamic religions, drawn from the same roots as Catholicism, requires abortion is some circumstances, and permits abortions, particularly when the potential mother’s health is at risk. This doesn’t even consider the beliefs of followers of non-Abrahamic religions, or of those who’s faith is in humanity, rather than some incorporeal deity.
The Roberts Republican Court is not “interpreting” the 1st Amendment. Rather it is eviscerating it, saying that it only applies to the followers of one branch of Abrahamic tradition, and does not protect believers in other faith traditions.
And there is no saving grace in pretending that what the Roberts Republican Court did was merely to allow the individual states to decide whether or not to allow abortions. John Roberts said, ”You don’t want the political branches telling you what the law is”. But letting the individual states decide the question is, of course, telling the political branches in those states that they have the authority to decide whether the 1st Amendment applies in their states.
At the other end of the Bill of Rights, the 9th Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In 1791, the Founding Fathers, only two years after the Constitution had been adopted, said in unmistakably clear language that there were rights retained by the people despite those rights not being mentioned in the Constitution.
In its Dobbs decision taking the right to abortion away from women, the Roberts Republican Court stated simply that there are no rights retained by the people unless those rights are specifically mentioned in the Constitution. This is not “interpretation.” Rather this is excision. The Roberts Republican Court is saying, clearly, that it rejects the 9th Amendment.
When John Roberts whined that his Court was losing credibility with the people because of its “interpretations” of the Constitution and of laws, he was simply lying. The Court is losing credibility because John Roberts and his five ReTrumplican partisan colleagues are slashing out clear sections of language the Founding Fathers wrote into the Constitution.
In other cases this year, the Roberts Republican Court has savaged other legal precepts and sections of the Bill of Rights. In May of this year, the Court adopted the “Roysden Rule,” offered by State of Arizona Attorney Brunn W. Roysden, III. As argued by Mr. Roysden, “Innocence is not enough” to keep a person off death row and out of the execution chamber. Mr. Roysden argued to the Roberts Republican Court, that Arizona should be able to execute a convict even though “no [jury] could have found the prisoner guilty”.
This argument paralleled the Dobbs concept that individual states can escape the requirements of the Bill of Rights, if they create state legal rules and procedures that get around the Bill of Rights. In this case, the state of Arizona has created a legal structure that allows people to be convicted of capital crimes without giving them actual opportunity to investigate and confront evidence against them, as guaranteed in the 6th Amendment.
Again, the Roberts Republican Court is not “interpreting” provisions of the Constitution, it is simply saying we don’t like that provision, so we are going to throw it out.
In another case this year, the Roberts Republican Court ruled that the 4th Amendment, prohibition “against unreasonable searches and seizures” does not apply when government agents really really want to search a private property and seize material for which they have no warrant, and that the 4th Amendment can’t give any relief to someone who’s property has been searched or seized, even if that person was brutalized, even tortured by agents during the search.
In another case, the Roberts Republican Court attacked the 5th Amendment and its protections for criminal defendants, undermining settled law. In these cases, the Court was not “interpreting” the Amendments, but simply cutting away the protections they used to offer to innocent people not charged with any crime and for those people charged and trying to defend themselves.
This is a return to the philosophy of Ronald Reagan’s morally corrupt attorney general Edwin Meese, who said in 1985, “If a person is innocent of a crime, then he is not a suspect.” That’s right, the police never arrest and prosecutors never charge innocent people! So we just don’t need Miranda Warnings, or an end to interrogation room beatings or any other famous police tactics for getting conviction or confessions.
John Roberts and his Court are embracing these antique approaches to law as modern social media is making it impossible for people to ignore the widespread abuse of processes by police. The Roberts Republican Court lives in a world of pre-WW-II, pre-New Deal capitalist fantasies.
Section 2 of the 14th Amendment prohibits abridging the right to vote, “in any way”. And the 15th Amendment says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” But John Roberts has been a zealous supporter of racial gerrymandering in voting. And his Court has taken on a voting rights case for the coming term in which the announced goal is to eliminate state courts, and state constitutions from the process of protecting state voters from partisan racist gerrymandering to maintain Republican control of elections.
Back in 1981, when he was just a young, white supremacist lawyer in the Reagan Justice Department, John Roberts wrote a policy memorandum in which he outlined a strategy for overturning Brown v. Board of Education and the 1965 Voting Rights Act. Decades before anyone thought of him as a Supreme Court candidate, he was making his mark as an unambiguous racist in the halls of Republican organizations.
But it is not merely his ardent racism that affects the public view of the Roberts Republican Court. In his Sept. 9 statement, John Roberts also said, “You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is”.
WHAT? We don’t want state Legislatures and Congress “telling us what the law is”?!? Our entire government system is based on the idea that elected politicians will enact laws, based, hopefully, on what the public (“public opinion”) wants. But John Roberts doesn’t want that. The Chief Justice of the United States Supreme Court believes that other voices, like the Heritage Foundation or the Federalist Society, or more particularly, the corporations and monied interests who founded and control such organizations, should be. “Telling us what the law is.”
John Roberts presided over the Citizens United v. FEC case which allowed corporations to openly buy politicians and legislation that they wanted. His vision for the United States is for a nation governed by a cadre of noble capitalist oligarchs telling the masses of lower classes “what the law is” and what our duties to our rulers are - lower classes, because part of the oligarchical design is to eliminate the middle class, which always pushes for such ‘wasteful’ things as education and healthcare and safe working conditions and even fair pay.
Modern social media makes it essentially impossible to avoid the public, particularly active younger people, from seeing and increasingly understanding what John Roberts and his Roberts Republican Court colleagues want. They can slash away at the protections of the Constitution, and they give every indication of intending to continue to do so in the coming Court term.
But in the 12 years since Citizens United was decided, technology has given more people more opportunities to see behind the velvet curtains of the Court, and to see and understand that the Roberts Republican Court is not “interpreting” the Constitution as much as it is working to eviscerate the Constitution, removing sections that protect both voters and general citizens and residents alike.
When John Roberts whined that people were questioning the legitimacy of the Roberts Republican Court, he was (far) right. When he claimed that the questioning arises from disputed “interpretations” of the Constitution, he was lying. People question the legitimacy of the Court because the Court is clear that it is on a political mission, which includes simply excising, not intepreting parts of the Constitution.