Is Justice Roberts an 'Obama Judge'?
If the Kavanaugh hearings showed Chief Justice Roberts anything, it should have been that the notion that the Supreme Court is in a pristine bubble immune from political considerations and thoughts is false and has been at least since the days that the character assassins of Robert Bork made his name a verb in the dictionary his failed nomination left on the ash heap of history:
The year was 1987. It was fall. It was November 11. It had been a tough year for President Ronald Reagan. Liberals were going bonkers with Iran-Contra as a hopeful tool to destroy a great president on the verge of winning the Cold War. The media was dubbing Iran-Contra the worst mistake of Reagan’s presidency. It was not. What happened on November 11, 1987 would, in due course, constitute the worst mistake of the Reagan presidency: the nomination of Anthony Kennedy for the U.S. Supreme Court.
The Kennedy pick was supposed to calm the waters after the storm generated by the Robert Bork and Douglas Ginsburg nominations. Bork would have been a brilliant justice, but leftists savaged the man, transmogrifying him into an ugly beast -- a gargoyle. Bork suffered the ignominy of the likes of Senator Ted Kennedy portraying him as “anti-woman.” A new verb was introduced into the political lexicon: the process of being “Borked.”
It had dawned on the Democrats that they could bypass the cumbersome legislative process still tied to that inconvenient “consent of the government thing” by concentrating on the courts and populating it with judges who believed in the “living constitution” which was to be interpreted in the context of the times inflamed by public passions and the liberal cause du jour. Original intent was an anachronism.
Bork’s nomination scared the hell out of Democrats who thought the unalienable right to life Thomas Jefferson placed in the Declaration of Independence didn’t really mean that:
When President Reagan nominated Bork to the Supreme Court, there was no serious question about his qualification for the bench. Just five years earlier, he had been unanimously confirmed for the DC Circuit Court of Appeals, having earned an “exceptionally well qualified” label from the American Bar Association. But in the interim, the Democratic Party had taken control of the Senate. The late Senator Ted Kennedy orchestrated a smear campaign against Bork so breathtaking in its distortion that even the liberal Washington Post denounced it as a “lynching.” On Oct. 3, 1987, Bork’s nomination was rejected by the Senate on a 58-42 vote.
Bork was an originalist, meaning that he believed the Constitution contained no “penumbras” and “emanations” one could hang an imaginary right to an abortion on, a fact which prompted Chappaquiddick’s champion of women’s rights, Sen. Ted Kennedy, to cross that bridge when he came to it in his epic rant on Bork’s nomination:
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, and schoolchildren could not be taught about evolution," Kennedy said.
With a Senate cowed by political considerations and the passions of the moment, we got Anthony Kennedy’s America, a land of weather-vane SCOTUS decisions and coat-hangers continuing to be beaten into scalpels. Thanks to President Trump, who realized that the Supreme Court was and still is a political arena, at least for those who confirm SCOTUS picks, the appointments of Gorsuch and Kavanaugh have shifted SCOTUS back in an originalist direction. Are they “Trump” justices per se? Perhaps not, but they share his views on the role and limitations of the Supreme Court.
Roberts’ rebuke of President Trump for saying there was such a political animal as an “Obama judge” makes him a poster child for hypocrisy harkening back to the day that he sat silent as President Obama scolded the Supreme Court during the State of the Union address over the Citizens United victory for free speech:
…Roberts sat quietly through President Obama’s 2010 State of the Union Address when Obama sharply attacked Supreme Court justices sitting in the audience for their ruling in the Citizens United case, which allowed unlimited political campaign contributions by unions and corporations.
President Obama falsely claimed in this speech that the Citizens United ruling allowed massive political contributions by foreign corporations. It did no such thing.
As the justices sat in the House chamber listening to his speech, President Obama embarrassed the court directly and fiercely. Not a peep from Roberts. Only Justice Samuel Alito quietly mouthed to himself “no, no” as Obama railed against foreign campaign contributions. Roberts has said nothing about Obama’s remarks in the eight years since.
Some would say that makes Roberts an “Obama judge” and the case could be made that his subsequent role in judging the constitutionality of ObamaCare.
Roberts was rebuked for caving in to Obama by Joseph diGenova, a former U.S. attorney for the District of Columbia (who would make a damn good attorney general):
Many believe that Roberts caved to political criticism by President Obama and his Democratic cohorts in a case where Roberts was the decisive vote in a ruling that found ObamaCare was constitutional -- a historic victory for Democrats.
Roberts clearly accepted the claim by Democrats in that case that the Supreme Court could not overturn ObamaCare or the high court would forever harm the republic and subvert the legislative process and the will of the people.
It is widely believed that Roberts changed his vote at the last minute to stop the Supreme Court from overturning ObamaCare in that landmark case because of pressure from outside forces directed against him.
Indeed, the wording of various dissents in the ObamaCare case -- especially Justice Antonin Scalia’s – made it clear that Roberts’ decision to find that ObamaCare was constitutional was political and nothing more -- not a decision based on the Constitution or on the law.
The ObamaCare ruling was a legacy opinion for Roberts because he couldn’t take another wave of criticism like what he received from the liberal media, Obama and the Democrats after his ruling in the Citizens United case.
Roberts capitulated and said ObamaCare was constitutional because it was a tax, a gross distortion that injected into the law the false notion that government could legally force people to buy a product they did not want. He knelt before the power of the state and not before the Constitution, the document that is supposed to limit government power that he was sworn to uphold and protect. In this instance at least, John Roberts became a judicial activist aiding and abetting a community organizer. He became an an Obama judge.
Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.