Jurisprudence

John Roberts Under Attack

The chief justice continues to be blamed for Merrick Garland not getting a Senate hearing.

U.S. Supreme Court nominee Merrick Garland.
It’s entirely possible that nobody cares all that much about Merrick Garland’s fate. But they may still care about the court itself. Above, Garland at an April 14 meeting on Capitol Hill.

Alex Wong/Getty Images

There’s one talking point that is on every fashionable Capitol Hill denizen’s list this spring: The other side is politicizing the Supreme Court. But which side is right?

Two public events on Thursday in Washington, D.C., begin to suggest an answer.

At a roundtable breakfast for reporters hosted by the Heritage Foundation, Texas Gov. Greg Abbott thought he’d weigh in on the landmark immigration case that was argued at the high court just this past Monday. Texas and 25 other states are suing President Obama over his executive actions that would defer deportations for certain illegal immigrants. The justices—who wouldn’t even meet for conference to discuss the case until Friday—were chastised in advance of that conference by the governor. “Because politics is being played at the United States Supreme Court, I think the best we can hope for is a 4–4 split decision,” Abbott said. “But it will not be a broad-based application across the United States affirming the principle that the president does not have the unilateral authority to rewrite the law.”

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Then Abbott turned his attention to Chief Justice John Roberts, who some still believe might conclude that Texas does not have legal standing to even bring this lawsuit in the first place. Roberts, said Abbott, is in fact “the tip of the spear in playing politics.” Why? Abbott—channeling his friend Sen. Ted Cruz and Senate Judiciary Committee Chairman Charles Grassley—reminded us tartly that “Roberts knowingly and clearly and unabashedly rewrote Obamacare twice. What we are seeing is nothing more than naked politics being played. It’s time to stop.”

Yes, it’s time to stop. But Abbott wasn’t quite through with his efforts to depoliticize the court by calling the chief justice a political spear. Like Grassley, he wanted to be sure that everyone understands the Supreme Court itself is to blame for the fact that it is too politicized for the Senate—which continues to refuse to even hold hearings for nominee Merrick Garland—to allow it to function properly. “The United States Supreme Court is more of a political body than it has ever been in the United States of America,” Abbott said. “And because, on its own, by its own fault, as an institution, it has chosen to be a political body, it deserves to be swept up into the political process.”

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But maybe the high-water mark of Abbott’s speech about depoliticizing the Supreme Court came with his caution that “we double dare the United States Supreme Court to reduce the Bill of Rights to the first nine amendments.”

I’m sorry Gov. Abbott, did you just in fact double-dog dare the chief justice of the Supreme Court? Did he take your Lego Batmobile or something?

While Abbott was inserting himself into a pending case before the court, threatening the chief justice, and effectively saying the court is so politicized that no new justice can ever be confirmed, he also needed to add in a drive-by jab at Judge Garland. Since the court “deserves to be swept up in the political process,” Abbott said, “it’s right for the American people—or senators elected to represent the American people—to have a say in who gets to sit on the bench.” The Constitution “does not say ‘advise and approve,’ but ‘advise and consent,’ ” he added.

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Anyway, Abbott argued, if they weren’t going to confirm Garland at the end of the thing, what was the point of holding hearings? “Why should they have to go through a dog-and-pony show?” he asked. 

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Just in case you’re trying to track the logic here on a yellow pad, what Gov. Abbott is saying is that the court is really political, so the Senate should decide the next justice by way of their constituents, which is why the Senate should not decide, and then also a pony.

In his opinion in last year’s Affordable Care Act suit—the one that sealed his fate for all time as the Tea Party’s worst enemy—Roberts was careful to caution litigants against trying to politicize the court by filing “implausible” cases. Contrast that with Abbott, who once said of his approach to his old job as Texas’ attorney general, “I go into the office, I sue the federal government, and then I go home.”

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So, it is clearly Roberts who is tarnishing the neutrality of the Supreme Court. 

There was one more speech in Washington on Thursday, given at another breakfast, that demonstrated the silliness of this blame game contest. Garland sort of broke unwritten protocol by speaking at an event honoring Washington law firms that do pro bono work. As the account in Politico notes, celebrating lawyers that give time to good causes is “the kind of address that’s relatively common for a sitting judge to make, but one that previous high-profile court nominees have studiously avoided.”

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Since Obama named him as the nominee to replace Antonin Scalia, Garland has stayed on as chief judge of D.C. Circuit Court of Appeals but has not been hearing cases. He is going to his courtesy meetings at the Senate. He has declined to give television interviews. The speech he gave supporting pro bono lawyers was probably the most overtly political thing he has done since his name was announced in the Rose Garden more than a month ago. In that speech, Garland did not attack the senators who are blocking his hearings, the Supreme Court, the chief justice, or in fact say anything politically charged beyond an observation that poor people deserve justice, too.

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“Without legal assistance poor individuals and families have no real access to justice,” he said. “Without access to justice, the promise of equal justice rings hollow. Without equal justice under law, faith in the rule of law the foundation of our civil society is at risk.” So that about sums up Garland’s role in the politicization of his nomination. He forgot to double-dog dare a single person to a spitting contest behind the bleachers, though.

Polls show that the majority of Americans believe Garland should have a hearing and a vote. Those numbers have actually increased in the past month. Until now, nobody believed that this would make any kind of difference in the November election. That conventional wisdom seems to have been sagging a bit under the weight of new polling this week that suggests Sen. Kelly Ayotte of New Hampshire is suddenly locked in a dead heat with challenger Maggie Hassan—and her part in the continued obstruction of Garland’s hearing is a factor in her new struggles.

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It’s entirely possible that nobody cares all that much about the fate of Merrick Garland. But they may still care about the court itself. Reflect on this fact: One political party is threatening to break the court, and also threatening the chief justice if he doesn’t align with them and—in the midst of such threats—blaming him for blowing up the whole institution. The other political party is trying to confirm a judge; a good judge who believes poor people should have lawyers. For which he will—wait for it—be accused of politicizing and tarnishing the good reputation of the court.

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