A Swiss Cheese: Chief Justice Roberts’s Push To Avoid Partisan Hostility Is Full of Holes

The Supreme Court tariff decision was a Swiss cheese in all respects. The rigor of Justice Brett Kavanaugh’s dissent made it clear that the Republican appointees who deserted the president, Chief Justice Roberts and Justices Amy Coney Barrett and Neil Gorsuch, flipped a legal coin.It all has the air of the Roberts era. The testimony of the future Chief Justice prior to his confirmation in 2005 was so agile and noncommittal that he was much praised as an unobjectionable candidate. His practice as chief justice has been to avoid maximum controversy and spare the court as much as he could from intense partisan hostility. To this apparent end, Chief Justice Roberts legitimized Obamacare by calling it a tax. It wasn’t really a tax but it was the keystone of the administration’s policy and if the Supreme Court had struck it down it would have led to great controversy. The Chief Justice’s desire to avoid immersing his court in deep partisan controversy is not in itself discreditable.Yet nor is it the constitutionally identified mission of America’s highest court at the summit of the coequal judicial branch of government. Along the same line was the refusal to hear the case of the attorney general of Texas, supported by 18 other analogues in other states following the 2020 election and alleging failure of a number of the states to discharge their constitutional obligation to assure that federal elections are conducted fairly in their states.Overturning the apparent result of the presidential election would certainly have led to immense controversy and it was fairly obvious that with a partial dissent from Justice Samuel Alito, the Supreme Court determined that it did not want to run any risk of doing that. That is, again, understandable as a political choice. Yet there is nothing that occurs in America that is more important than a presidential election and in 2020 the Supreme Court was aware that the total vote had spectacularly increased by 21 million compared with the previous election.The 2020 election was also marred by concerns over many millions of unsolicited mail-in ballots sent to voters, raising the risk of ballot harvesting and a lack of certainty over whose hands the ballots passed through before they were cast and enumerated. It was an election in which if 50,000 votes had flipped in Pennsylvania and in two of Arizona, Georgia, and Wisconsin, President Trump would have won. In the circumstances, his comments at the Ellipse on January 6, 2021 were reasonably restrained.At some point, the Supreme Court cannot discharge its duty if it ducks an important and vexed issue. It demonstrated this in overturning Roe v. Wade, which was seen from the start as a weak decision. The court also demonstrated this in effectively affirming that the principal issue was not ultimately a woman’s control of her body but the point at which the unborn achieve the rights of a person.The court sent the issue back to the states with a neutral view of the ethics and legality of abortion itself. The pyrotechnics of the abortion advocates could not be sustained since the high court was certainly not trying to impose childbirth on a woman who did not wish to have a child. Friday’s tariff decision was an anticlimax, but it appears to have addressed some of the complaints against a mainly Republican-appointed court by appearing to stand up to Mr. Trump. Yet the president and his chief collaborators quickly made it clear that the effect would be practically zero because of other legislation that can be invoked to justify tariffs to the one the Supreme Court rejected.In this it somewhat resembled the controversy over the Schechter Poultry Corporation in 1935, when the Supreme Court invalidated the National Industrial Recovery Act, a centerpiece of the New Deal. In 1937, President Franklin Roosevelt presented his plan to increase the size of the Supreme Court. Congress rebelled and would not enact the measure. FDR, though, had frightened the court. While he didn’t much care about the Blue Eagles and the cartelism of the legislation declared to be unconstitutional, he wanted to warn the Supreme Court not to try to overturn more important measures such as the Tennessee Valley Authority. The court made its gesture of independence and took the president’s point about not making a habit of striking down his program. Something similar may have happened here.In all of the circumstances, it would have been better if the president had not responded with quite such hostility to the justices that he felt had betrayed him, particularly Justices Gorsuch and Barrett, though he did not name them. His fulminations did gratify the presidents’ Democratic opponents and must have assisted the court in shedding the suspicion of many that it is prone to give the administration a blank check.Yet such an undignified swipe at persons whose integrity must enjoy public respect, especially when there is such extreme hostility between the administration and its enemies in the Congress is an unnecessary indignity, though that is not without precedent for this administration.The tariff issue will now settle down quickly and the president’s new task is as commander-in-chief to follow the thoroughly provoked necessary strategic course of ending the perverted theocracy in Iran. He must make the point to the country and the world that there can be no peace in the Middle East while an oil-exporting country of a hundred million people is trying to prevent peace, and that there can be no peace for Israel as long as that same power is arming and bankrolling those absolutely committed to die before they can coexist with the thought of a Jewish state in Israel. Now is the time to explain these facts to the country and concentrate on the retention of almost perfect military execution that the armed forces have shown in their recent operations.The country must be made to understand that for the first time in more than a century there is a chance for durable peace in the Middle East and for an outright victory over the war on terror that was launched on September 11, 2001, from the rubble of the World Trade Center.

A Swiss Cheese: Chief Justice Roberts’s Push To Avoid Partisan Hostility Is Full of Holes

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