A Reality Check for Chief Justice Roberts

A Reality Check for Chief Justice Roberts
Gutfeld: Schumer Rips Trump, Makes Trumps Point
The Democratic New York lawmaker was on the Senate floor speaking against Thomas Farr, a North Carolina lawyer who is President Trumps pick to be a district court judge in his home state.

Schumer said on the Senate floor that Farr “stands for the disenfranchisement of voters,” then raised the 2013 Supreme Court case Shelby County v Holder. That case ended in a Roberts opinion that said a key part of the Voting Rights Act of 1965 is outdated and needs to be modernized.

“The data show that judges take law quite seriously, and that in relatively simple, straightforward cases, where the law and facts are fairly clear (which is most of the time) judges will reach the same result regardless of partisan background,” he said in an email. “The media’s focus, however, is understandably not on the easy cases — which are rarely newsworthy — but on the controversial cases, which are controversial often because the facts or law are uncertain.”

“Justice Roberts will go down in history as one of those who worked to take away voting rights when he authored the Shelby decision and stated that he didnt believe that … more or less, he stated that he didnt believe that discrimination existed any longer, so we wouldnt need Section 5 of the Voting Rights Act,” Schumer said.

“When judges on one side of the political spectrum are unified on an issue and those on the other are split on an administration policy, it likely means that the administration’s position is either weak — as in the sanctuary cities cases, where both GOP and Democratic appointed judges have almost uniformly ruled against Trump — or relies on arguments that appeal to only one side of the ideological divide,” he said, noting the travel ban case as an example of the later.

But Roberts never wrote that voting discrimination no longer exists and, in fact, said explicitly that it does still exist.

Mr. Trump was incensed last week after a ruling by U.S. District Judge Jon S. Tigar in California that blocked the president’s get-tough approach toward immigrants living in the U.S. illegally abusing the asylum system. Mr. Trump called him an “Obama judge” and blasted the broader judicial 9th Circuit, which covers the federal courts on the country’s west coast, saying he doesn’t get a fair shake from them.

“At the same time, voting discrimination still exists; no one doubts that,” Roberts wrote at the time.

“Trump’s comments might have caused less controversy if they were not part of a long string of inappropriate attacks on the judiciary,” Mr. Somin said. “Previous presidents have occasionally made dubious statements about the court’s [such as President] Obama’s notorious attack on Citizens United during the State of the Union, but Trump is unusual for doing so with such frequency.”

Shelby v. Holder dealt with Section 5 of the Voting Rights Act. That section required certain states and districts with a history of discrimination to get permission from the federal government before changing their voting rules.

Roberts majority opinion said the list of states and districts covered by Section 5 was antiquated and that Congress needed to update the list before applying the section again, to make sure it reflects areas that are still struggling with discrimination.

“There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions,” Roberts wrote. He said black voter turnout is much higher now and, in some areas, exceeds white voter turnout.

Cases involving the Obama-era Deferred Action for Childhood Arrivals program, which allows immigrants who came to the U.S. illegally as children to stay in the country, are mixed, with most Republican judges siding with the Trump administration, but one judge named by President George W. Bush ruling against the current administration.

“The question is whether the Acts extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements,” he wrote. “As we put it a short time ago, the Act imposes current burdens and must be justified by current needs.”

“Congress — if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” Roberts added. “It cannot rely simply on the past.”

An earlier Times analysis of rulings in Obamacare-related cases found a split just as striking. More than 90 percent of Democratic-appointed judges backed the Affordable Care Act, while nearly 80 percent of GOP-nominated judges found legal fault with the 2010 law and the way the previous administration carried it out.

AP Photo/J. David Ake AP Photo/J. David Ake X Story Stream recent articles Video: Global Warming Lorem Ipsum Dolor Sit … Article: Global Warming Lorem Ipsum Dolor Sit … Article: Global Warming Lorem Ipsum Dolor Sit … Entry: Global Warming Lorem Ipsum Dolor Sit … Video: Global Warming Lorem Ipsum Dolor Sit … Its not often that President Donald Trump appears more knowledgeable and honest about American jurisprudence than a Supreme Court justice — any Supreme Court justice — but on Thanksgiving week, Trump demonstrated a more realistic insight into how political the nations top court has become than Chief Justice John Roberts.

“Even though most Americans recognize that judges have political views, there is a basic assumption among many or most Americans that judges ultimately will place the rule of law ahead of politics,” said William G. Ross, a professor of law and ethics at Samford University in Birmingham, Alabama.

During the 2016 election, Trump asserted that U.S. District Court Judge Gonzalo Curiel had an “absolute conflict” of interest and should not preside over class-action lawsuits against Trump involving the dubious Trump University because Curiel is of “Mexican heritage.”

Since Trump said he wants to build a wall at the border with Mexico, Trump argued, an American judge with Mexican parents would hold an unfair “bias” against him. Many — count me in — found it offensive that Trump seemed more interested in Curiels lineage than his status as an American.

President Trump wasn’t wrong last week when he pointed to an obvious ideological gap between judges nominated by a Democratic president versus those nominated by a Republican — but legal experts said his mistake was in coupling it with such naked criticism of the judiciary.

In Feburary 2017, when U.S. District Judge James L. Robart in Seattle blocked enforcement of Trumps hastily written and poorly conceived travel ban, Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.”

“Although I generally believe that both presidents and justices should scrupulously refrain from criticizing one another, I believe that Chief Justice Roberts‘ statement was justified in the wake of President Trump’s unprecedented remarks,” he said.

After nearly two years of Trump tweeting at all hours, the “so-called judge” line seems mild — but federal judges are a prickly lot. Trumps first Supreme Court pick Neil Gorsuch felt sufficiently disturbed that he had to admit he found the comments “disheartening” and “demoralizing” — before his confirmation.

“The best evidence suggests that ideologically motivated reasoning at the margins is subconscious, which helps to explain why the chief [justice] is absolutely right when he says that judges do not think of themselves as Obama judges or Trump judges,” he said.

So after a federal judge in San Francisco issued a restraining order Tuesday against Trumps new policy limiting asylum claims to those made at legal checkpoints, Trump railed against “Obama judge” Jon S. Tigar and the 9th District — which has blocked all three Trump travel bans, including the one upheld by the top court.

Those remarks apparently were a bridge too far for Roberts, who issued a statement of rebuke. “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.”

“No serious observer doubts that there are ideological differences among judges that influence decision-making on some hot-button cases, and that those differences often correlate with party,” said George Mason University law professor Ilya Somin.

Sorry, but the 9th Districit is a preferred venue for lawyers shopping for a liberal decision. As Trump told reporters on Thanksgiving, “And essentially theyre legislating, theyre saying what to do,” and theyre “out of control.”

All of the eight Republican nominees, meanwhile, backed the president’s powers to issue the ban — including Chief Justice Roberts, who wrote the majority opinion for the court, which was indeed split 5-4 along presidential appointment lines.

Theres a reason conservatives call the 9th Circuit the “Nutty Ninth.” From 2010 to 2015, the U.S. Supreme Court overturned 79 percent of the circuits decisions. (Polifact notes that the 6th Circuit has a higher reversal rate.) The 9th Circuit has 17 judges appointed by Democratic presidents, as opposed to seven GOP picks, and GOP picks in the district, like Robart, have been known to rule against the Trump administration.

Legal scholars say it’s not so much the party labels, but the competing judicial philosophies that are playing out in those numbers — though they say most judges do try to live up to their profession as independent arbiters of justice.

But it is the baldness of some of the 9ths rulings that has solidified its reputation for putting left-wing politics before the letter of the law. This is the circuit that found the Pledge of Allegiance to be unconstitutional because of its inclusion of “under God.”

In 1992, federal judges in California issued a slew of appeals trying to stop that states first execution in more than a decade until the Supreme Court ordered judges from the 9th to stop presenting appeals and double murderer Robert Alton Harris was executed in San Quentins gas chamber.

He said presidents, too, have generally avoided criticizing the courts for fear of antagonizing voters who would conclude a broadside was intended to undermine respect for the rule of law or to interfere with judicial independence.

Trump is hardly the only conservative who sees the 9th District — which contains Nevada, Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington — as too big and too much of a California powerhouse. Arizona Republican Sens. Jeff Flake and the late John McCain introduced legislation in 2017 to create a new 12th circuit by peeling away Nevada and five other states.

Charles Gardner Geyh, a scholar of judicial ethics and independence at Indiana University’s Maurer School of Law, said ideology does have a subconscious effect on judges but that doesn’t make them biased.

Last year Flake complained, “A state with admittedly little in common with states like Arizona or Oregon or the six other remaining states in the circuit can decide the majority of appellate judges for the western half of the country,” according to the Washington Times.

And while Roberts chided Trump for seeing Obama and Clinton justices versus Bush and Trump justices, the partisan divide keeps popping up in Supreme Court decisions.

In June, when the Supreme Court upheld Trumps third (and much improved) travel ban, Roberts wrote an opinion that noted the policys “legitimate purposes.” He was joined by four other justices nominated by Republicans and all four justices nominated by Democrats dissented.

Its true that the justices can be very collegial and as institutionalists, they are duty bound to defend each other as honest jurists upholding their honest views of the law. But somehow when it comes time to vote on matters that divide the country, the decisions tend to divide on the same lines.


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