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John Roberts and the Return of High Court Taneyism

Posted on Thursday, February 1, 2024
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by AMAC Newsline
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62 Comments

AMAC Exclusive – By Seamus Brennan

Supreme Court Chief Justice John Roberts

With a handful of looming, high-profile decisions on the Supreme Court’s docket this term, Chief Justice John Roberts’s jurisprudential Taneyism is once again threatening to rear its head. And with just months to go before this year’s long-awaited presidential election, a key question is now resurfacing: will Roberts’ well-documented obsession with the Court’s political reputation and his own image once again outweigh his commitment to upholding the Constitution and the rule of law?

Last month, to the chagrin of many conservatives, Roberts succeeded in doing what he failed to achieve with the 2022 Dobbs decision: bringing a constitutionally conservative justice to his side.

On January 22, the High Court granted a request from the Biden administration to allow federal Border Patrol agents to remove razor wire installed by Texas along the southern border. Perhaps unsurprisingly, Roberts ruled in favor of the federal government with the Court’s three Democrat-appointed justices.

Also in the majority, however, was Trump-appointed Justice Amy Coney Barrett, who abandoned her fellow conservative justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—to join Roberts and the liberals in a tiebreaking 5-4 majority.

Some Court observers were quick to note that the Court’s January 22 ruling only relates to a court order on removing the razor wire and in fact does not forbid Texas from reinstalling it and other barriers along the Texas border. Moreover, the 5th Circuit Court of Appeals has yet to hear the case on the substantive merits, leaving open the possibility of a Texas victory in the near future.

But even so, Roberts’s apparent success in bringing Justice Barrett to his side in the Texas ruling signals a potentially ominous sign for the remainder of the Court’s 2023-2024 term. The justices are soon expected to decide questions relating to President Donald Trump, including on matters such as a ballot eligibility, the question of presidential immunity, the dubious legality of the appointment of Special Counsel Jack Smith, and the extraordinary decision of a radicalized federal judge to silence a defendant from criticizing the role of “politics” in a clearly politicized prosecution. They are also set to rule on issues such as the future of Chevron deference, which gave unwarranted authority to the administrative state, and the availability of abortion pills, among other high-profile questions.

With the constitutional and political stakes as high as they are, Roberts is almost certainly working frantically behind the scenes on some of these cases to circumvent what he perceives to be an impending public relations disaster for the Court as it approaches the end of its term this summer.

Roberts’s inclination toward Tanyeism was first exposed in a May 2022 AMAC Newsline column, “Creeping Taneyism at the High Court: Can Roberts Alter Alito?” That piece provided an astonishing account of Roberts’s obsession with keeping in place his two-decade-old habit of handing unexpected victories to the Democrat Party, the media, and the cultural left ostensibly in order to protect the nation and the Court from what he sees as disruptions to social “stability” and the dangers of “polarized” politics.

The 2022 column compares Roberts to the Court’s fifth Chief Justice, Roger Taney, who sought in 1857 to ease the nation and the Court through the dangerous shoals of disunion over slavery with the ill-considered Dred Scott decision, which succeeded only in stoking the fires of division. By tracing in detail the current Chief Justice’s remarkable history of media and Court maneuvers in service of vague concepts like “fluidity in the middle,” the column lays out Roberts’s shaky rationale for justifying his own frequent abandonment of the constitutionalist principles on which he was first nominated and appointed to the Court in 2005.

Of course, the failures of Roberts’s Taneyist maneuvering in the Dobbs decision (in which he vigorously attempted to lobby Justices Kavanaugh and Barrett to deliver a middle-ground ruling that would have kept Roe largely intact) destroyed the idea that the Supreme Court was the Roberts Court. Instead, it proved that the Chief Justice’s inclination to cater to the political sensibilities of the day rather than uphold the Constitution was, at least for a time, destined to fail.

But with so many high-stakes cases near on the horizon and Justice Barrett’s apparent newfound willingness to link arms with Roberts on at least the procedural aspect of one contentious legal question, the Chief Justice’s Taneyism threatens both the institutional legitimacy of the Court and the enduring health and stability of the American constitutional order.

As previously noted here, in attempting to spare both himself and the Court from political criticism, the Chief Justice is not only setting himself up to become the most political member of the Court, but he is also doing more than even the most outspokenly progressive justices to cement the Court’s status as a political—rather than a legal—institution in the eyes of the American public.

As the 2022 column pointed out, Roberts had promised the president who nominated him and the U.S. Senate that confirmed him that he understood his role as a judge limited him to being a “balls and strikes” referee who would make decisions based on the rulebook of the Constitution and statutory law. However, beginning with in an astonishing series of interviews he started giving after President Obama and the media began targeting the so-called “Roberts Court,” Roberts increasingly tried to soften his image by using buzzwords and slushy language like “fluidity in the middle” to describe the proper frame of mind for justices in approaching contentious cases.

This is precisely the sort of reasoning his critics have charged led to rulings that, for instance, saw Roberts joining Justice Anthony Kennedy in a spectacular case of legislating-from-the-bench to massively expand Obamacare.

Perhaps nothing would do more damage to the Court in the eyes of the American voter than a decision allowing states to remove Donald Trump—the presumptive Republican nominee and the current favorite to win the White House this November—from the ballot, or future rulings further limiting border states’ ability to defend their sovereignty and protect their communities. Though Roberts fails to see it, should he engage in public relations-oriented jurisprudence instead of a sincere effort to uphold the Constitution, he risks doing more institutional damage than anyone else to the Court he claims to be protecting.

A cynic might note that in the past, when he had cost the Court dearly with the constitutionalists, Roberts drew a host of favorable headlines about himself from publications like Slate calling him a “political genius” to The Atlantic calling him a “moderate hero” and “just who the Supreme Court needed.” But although such headlines might have helped Roberts personally, his “fluidity in the middle”-based approach to legal decisions has only fed the alligator-like appetite of the left—from President Obama to Senate Majority Leader Chuck Schumer to hardcore progressive extremists—and contributed to their continued furious attacks and even threats on Roberts’s fellow justices as well as the Court as a whole.

Of course, the nightmare that Roberts fears is that the left will howl, as it always does, if it doesn’t get its way, in which case it will claim that Trump-appointed justices are trying to protect the former president at all costs and uphold what the left considers to be outdated views of the Constitution. While the Supreme Court has had an honorable tradition of not deliberately seeking to stoke social or political passions with far-reaching decisions—a tradition liberal justices have so frequently attempted to destroy—constitutionally sound rulings in the cases now before the Court can hardly lead to accusations of conservative adventurism.

Of course, should Roberts manage to get a 9-0 majority on the looming ballot question, it would temper left-wing criticism, but only temporarily alleviate conservative concerns that such a decision is merely set up for something that fits in more with Roberts’s trademark Taneyist style somewhere down the road.

Thus, with the High Court on the brink of several landmark rulings this June, the Court’s 6-3 Republican-appointed majority has a chance to deal a final death warrant to Roberts’s judicial Taneyism. And at a time when trust in the integrity of American institutions is reaching all-time lows, nothing could be better for the nation, the culture, and the Court itself.

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PaulE
PaulE
20 days ago

Justice Roberts was never really a conservative justice in terms of interpreting cases brought before the Court in a purely straight-forward standard of interpreting the constitutional validity of a matter strictly according to the Constitution as written. He has always been overly concerned with maintaining his social status in Washington, D.C. and thus ruling to NOT offend left-wing Democrats whenever possible nor jeopardize his invites to various D.C. social activities. G.W. Bush obviously made a bad choice in Roberts, but then Bush was a very squishy Republican himself.

There was certainly nothing preventing the Court’s justices from viewing the Texas case through the lens of national security via the massive, ongoing invasion occurring on our southern border, which is well delineated in terms of what individual states can do when the federal government refuses to enforce existing laws and the integrity of our borders. That both Roberts and now Barret decided to so narrowly restrict their ruling just to the razor wire itself and disregard the larger reason why the razor wire was installed in the first place, was a personal choice. Not a limitation of the Court’s power to consider the larger perspective. The 4 Justices of the Supreme Court that ruled in Texas’s favor certainly made their decisions based on the larger perspective.

I can under why Roberts ruled the way he did. He has shown a consistency, on important issues, to give the left as much latitude and support as possible. What I find disturbing is why Barret decided to rule the way she did. Did she rule that way out of fear of the left, that has her spooked about potential mobs of protestors camping out in front of her home for months on end or is it something else. That unfortunately is something we may never find out, as there was no explanation of why each justice voted in the manner they did.

In any event, there may soon come a point where the American people have to act on their own to defend the country’s national security, if the federal government simply chooses to continue to disregard all the immigration laws on the books to end this mass invasion of the United States. That is of course a matter for another day, and it is by no means a certainty at this point, that the American people will choose to act in any way at all. The American people could simply choose to do nothing and allow millions more to endlessly stream into the country and ultimately change the very nature of our country forever. Ultimately, the American citizens will end up with whatever type of country they allow to happen. It is what it is.

Morbious
Morbious
20 days ago

I worried then and strongly suspect now that barret is a one issue conservative, that issue being abortion. In other words, shes moderate to liberal on everything else. As to Roberts; his refusal to at least look at the 2020 election may well go down in history as one of the most lethal blows to our republic. Ive often read that high school is forever for many folks; they spend their lives trying to be popular. Roberts seems to fit that axiom.

Luke
Luke
20 days ago

Supreme Court is anything but ‘supreme’. Border sovereignty shouldn’t even be a point of debate….ANYWHERE in the world. But, in America people who are supposedly ‘elected’ can pick and choose which laws are enforced to the benefit of their stupid political careers and at the expense of the American taxpayer. Political insanity. Plan accordingly.

SUE A. EISENMAN
SUE A. EISENMAN
20 days ago

Roberts and Amy Conehead Barrett need to remember that they will answer to a much higher Judge someday to answer for their sins of betrayal, not only of the American people, but of the entire free world. They are leaving a legacy of shame and disgrace to their children and grandchildren also.

Robert Zuccaro
Robert Zuccaro
19 days ago

Lesson learned: never count on or put your faith in anyone in government. Once they taste the perfectly made coctails and the escargot and seafood dishes while being wined and dined at the DC Party Circuit, integrity takes a back seat.

Old Mate
Old Mate
19 days ago

He needs to go online and order a pair of balls.

Garyk
Garyk
20 days ago

The flip flopping of supposed rule of law justices is disappointing and concerning.
Some in this current court lack a strong constitutional backbone and begs the question if lifetime appointments are wise???

Bob Boskey
Bob Boskey
19 days ago

Roberts can be seen by looking at his wife, a real looker who likes the A-list party circuit. Bill O’Reilly has said DC is all about the parties and whom is invited to which. The right belt-way decisions get you on the A-list.

corbin douthitt
corbin douthitt
20 days ago

So, Kennedy is inserting himself as the ‘savior’ in his decisions, rather than the Constitution as it is written. These people live in a rarified environment where they keep breathing their own exhalations – as though those utterances are valid.Circular reasoning…

johnh
johnh
19 days ago

The Dobbs decision was leaked to press before SCOTUS made final decision. But there has never been anything from DOJ on who leaked this & why?

Theresa Coughlin
Theresa Coughlin
19 days ago

I’m surprised no one’s tried to impeach Roberts and remove him from the Court by claiming he lied to Congress when he said he would rule as a “balls and strikes referee”.

Kitty Corbett
Kitty Corbett
19 days ago

As a Southerner first, I support Texas’ decision to protect its own border from foreign invaders.

Sean Rickman
Sean Rickman
19 days ago

I am very surprised and disappointed in some of their decisions.And by the way,the CONSTITUTION is the supreme law of AMERICA.Read it,understand it and use it.It’s loaded with common sense,which is seldom seen today.

JohnLeeHooker
JohnLeeHooker
19 days ago

It is, as obama promised, a ‘fundamentally changed America’ in which a state is prevented by the highest court from protecting the residents of the state from violent illegal aliens.

Gary Gardell
Gary Gardell
19 days ago

Isn’t it “funny” that the liberal justices all hang together, all the time, on every issue whereas Coney Barrett and Roberts, especially, often vote with them. You rarely/never see the 3 liberal justices vote with the so-called conservative justices. Robert’s is actually a closet liberal who votes his personal opinions, not on the merits of the Constitution. He got snookered by the left and the media on the Affordable Care Act.

Pat R
Pat R
19 days ago

States’ rights trump federal gov’t’s rights. In this case Texas has every right to do whatever is needed to stop illegals BECAUSE the feds are not doing their job to abide by the law to keep our borders safe & secure from infringement.

Andrew P
Andrew P
19 days ago

This year has many high profile and politically explosive cases. The most important are the Trump ballot case coming up next week, and the Abortion pill case. Next most important is the “obstruction of official proceeding” case. Plenty of other cases have long term importance, but are unlikely to affect the election much or at all.

clayusmcret
clayusmcret
19 days ago

Since assuming the royal high poohbah’s chair, Roberts has decided with his reputation many more times than with the US Constitution. If a decision is going to make him look bad in the history books, bet money he’s voting the other way. There has only been one real exception, and even money says he’ll find a way to correct his reputation from that one.

Russ
Russ
19 days ago

Roberts is what he is. A backstabbing pretend conservative. The fact he controls Coney Barrett is scary. That she is naive enough to do what he tells her to do is dangerous. It shifts the majority to the liberals 5-4.

johnh
johnh
19 days ago

Our founding fathers created the Justice Department as a third branch so that they did not vote or fall under control of any party. The Supreme Court should be neutral & make decisions based on our Constitution . It is wrong for either the Democrats or Republicans try to influence the decisions of Supreme Court. Why do both parties admit that they want to put people here that will vote as the party tells them to.

David Millikan
David Millikan
19 days ago

Quit playing politics behind the bench Chief Justice Roberts.

JudyG46
JudyG46
19 days ago

HMM. Sounds as if someone “has gotten to” Chief Justice Roberts since he was voted onto the Supreme Court! Or, he has forgotten that our Constitution is the highest rule of law!
Maybe it’s time to investigate what he’s up to, who might have him “in their pocket”, or what’s really going on with him. Just a thought.

ThosB
ThosB
19 days ago

Barrett has stepped into Sandra Day O’Connor’s shoes. Disappointing.

Of Mr. Trump’s three SCOTUS appointments, two have turned out to be squishes. DJT likes to brag about these appointments, but 33% is a failing grade.

REDACTED
REDACTED
18 days ago

FOR GOD’S SAKE

NO MORE WOMEN ON THE SCOTUS

Ralph Sacrison
Ralph Sacrison
18 days ago

Justice Roberts has made himself into a progressive bureaucrat rather than an inspirational constitutionalist. As such, every procedural swearing to uphold the constitution is a lie before God and Country, and ultimately, the Country is at risk. Oh, another term for progressive bureaucrat is useful idiot, the telling term coined by Vladimir Lenin.

Gigi
Gigi
19 days ago

Amy Barrett is a Catholic and she put her Catholic Church ahead of the constitution and the protection of the citizens of the United States of America in her decision regarding the border. The Catholic Church has for decades profited by illegal emigration. For decades the US GOVERNMENT has given billions of dollars to the Catholic Church for their role in the illegal emigration situation. In my opinion, Amy Barrett is no longer fit to serve on the court.

Pat
Pat
19 days ago

Does anyone know why Our High Court refuses to hear the case of the Brunson Brothers re: Oaths.
There is so much evidence of Congressmen not taking ( just pretending) to take their oaths.

Also Nadler ( verified by video tape) declaring that oaths given before congress/ and depositions would no longer need to include “so help me God”, because he personally declared the change.

My understanding is that justices were not asked under oath – about who leaked the Wade v Roe – information before the result was announced.
Is this true? Why?
Some people think they know the answers.

Drue
Drue
19 days ago

The Supreme Court long ago stopped protecting the American people and started trying to watch their own collective butts. I thoughtRoberts might be different but no, same old stripes.

Cinncinatus
Cinncinatus
19 days ago

Robert is still calling balls and strikes. He just moves the strike around depending on political expediency.

Mike Petrik
Mike Petrik
18 days ago

The article is as disappointing as the commentary insomuch as there is no actual legal analysis whatsoever. I used to think that results-oriented views of judicial opinions were the special province of my lefty friends. Sadly, this appears to be untrue.

Akhenaten
Akhenaten
18 days ago

Roberts is doing way more damage to the reputation of the Court – and of his – with this extra-Constitutional approach of his. We didn’t put him there to look cool. We put him there to be an impartial Justice! Leave the politics to the politicians. Ironically, he would have gone down better in history if he had just played it straight. I could easily see him authoring that cockamamie Roe decision in the heat of all the political turmoil.

Loren Daugherty
Loren Daugherty
18 days ago

Your expertise is a valuable resource.

Fred
Fred
18 days ago

Justice Roberts has been a huge disappointment, and now justice Barrett is also. That’s too bad as we hoped she walked like she talked. Constitutional Law should be viewed and interpreted as our founders wrote it, with conservative views, not liberal. The problem is too much liberalism exists already with many leftists pushing for socialism.

SUSAN E ROSS
SUSAN E ROSS
18 days ago

The Supreme Court’s only objective should be to uphold the Constitution of this country. Trying to play a political role should lead to impeachment of John Roberts.

Patroit52
Patroit52
16 days ago

If the Supreme Court follows constitutional law there should be no surprise to the outcome. Any decision dealing with Trump to be elected should reside with the people of this nation.

Al Ottanger
Al Ottanger
16 days ago

One of the most telling was upholding Obama care as valid. That is one decision I view as his most egregious abandonment of the US Constitution

Kimberly Hills
Kimberly Hills
16 days ago

Hi i think that i saw you visited my web site thus i came to Return the favore Im attempting to find things to enhance my siteI suppose its ok to use a few of your ideas

Harry
Harry
16 days ago

When the country goes down, it will include the court, it will be too late for Roberts to save himself, but maybe he will be saved by his $$$$ friends?

Mary
Mary
18 days ago

You don’t understand Taney.

Mary
Mary
18 days ago

Because of your misunderstanding of Taney you are making an argument for an activist court. Taney was antislavery but was restricted by the Constitution. Wish Roberts was like him.

Tom in Seattle
Tom in Seattle
19 days ago

I think there’s a fundamental error in this article that should be pointed out. While I disagree strenuously with Biden on the border and immigration, the fact is that the Constitution puts immigration and foreign policy squarely in the hands of the President. The states aren’t permitted to run their own foreign policy, fight battles with parties at their borders, or overrule the President. Further, while I agree with Abbott that Texas is under siege, it isn’t up to Abbott to interpret the Constitution and conclude that his state has the right to take matters into its own hands because the federal government won’t do it. That matter needs to be adjudicated in the Court and, frankly, I don’t think that the Court was ever going to side with Texas on this one. The Constitution sets the roles and rules of federalism. Yes, Biden is actively trying to transform illegal immigrants into new Democrat voters. The solution isn’t to start a civil war or countermand the President’s ability to guide foreign policy; after all, there will be (hopefully) a Republican in his chair next year. The solution is to vote Biden out of office.

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