Thursday, June 28, 2012

Nice work when you can get it, Mr Chief Justice

Who knew?

Photography  Steve Pyke
The New Yorker©


  1. Replies
    1. Again in your uncanny way of discerning the important entries here, I find you contributing immediately and with characteristic genius for eliciting more remark. I think that Amy Davidson and Hendrik Hertzberg at The New Yorker have, since this posting, registered the significance of the Chief Justice's position in this landmark case with all that can be hasarded at this time, in terms of what it bodes for his future leadership of the Court and for the evolution of his own legacy in jurisprudence. Plainly an impression of the case's historical significance in the development of the Court's relationship to other far-reaching legislative initiatives - should we see any again, anytime soon, given the crippling of government our Right has wrought since 2010 - had to have weighed in his decision to be found on the side of permissive restraint. You certainly do remember, his quite mocking and contemptuous treatment of the Solicitor General's [flagrantly inept] presentation of the Administration's position, in oral argument; and yet his majority opinion found a way to retain some of that flavour and still dismiss it as not pertinent to the Court's rôle as he tried, carefully, to lay it out -- almost as if he had no idea he was commenting on the monstrous decision in "Bush vs Gore," which took place before his appointment, of course -- "It is not for this Court to protect the people from the consequences of their political choices" - Antonin Scalia having done just that, to protect the people from having elected Albert Gore to the Presidency of the United States.

      Having no illusion that the Chief Justice favours this legislation, I am nevertheless impressed that he chose this case, among all the other opportunities he has seized, from Citizens United in election spending to the latest desegregation cases, essentially to roll back Brown v Board of Education, to stand aside in a current pitched battle on new ground at the Federal level. The regulation of the health services industries is also far beyond the Court's competence to engage in, while intervention in a given school district's administration or in a State's interposition of burdens on citizens' voting rights, are comparatively simple settings for the very nastiest frustration of progress.

      Whatever his motive, it would have been simply scintillatingly obvious to the Chief Justice, that here was a "controversy" in which his one vote could preserve the free play of political forces to shape the nation's future in a matter of public policy, and it is notable that he chose to see this happen. It is tempting to imagine the same kind of permissive restraint in a case touching upon pollution "penalties" as "taxes," not as "takings" -- the great theory of the corporate Right -- if, as I say, Congress should ever regain the capacity to act. In the meantime I would have to say, from my professionally trained but lifetime layman's perspective, that this is suspiciously classic Chief Justice behaviour, in which the 1 vote he casts counts as voluminously more than the 4 he leads or the 4 he repudiates. I do not care for Roberts' point of view, as you have seen, but I am impressed by this display of his sense of his position.

  2. My reaction on reading of this judgement was "one swallow does not make a summer." I cannot believe that this might be but a unique event in the history of this court.

    1. Blue, thank you for visiting with this comment.

      With approximately a year now dividing this case from the next number of decisions to be handed down by this Court, it will naturally be interesting to see where Roberts' logic is exercised in briefs and oral argument in the next cases, and where it seems to influence opinions in lower federal courts. Surely you have noticed that at its highest levels in print media, in op ed spaces as well as in columns, the Right has spared no scintilla of energy to crush respect for this opinion. His method might well, therefore, galvanise only the widest emulation. In other words, whether the underlying text might have possessed any consequentiality or not, I wonder if the paranoia of the Right will not endow the opinion with the most unexpected influence. I realise, I am suggesting that the spectacle of the Right's panic over this opinion is, itself, very possibly a moment of institutional influence. I pray, even further if I may, that it is akin to any clarifying psychotic outburst in the theatre, where children may be taught what it looks like when malice simply can not stop itself.

      May I wish you a fine 4th.