After John Roberts sided with the liberals on the Supreme Court on Friday to deliver yet another 5-4, living Constitution, legislate-from-the-bench type of ruling, it finally hit me. Forget antifa, democrat mayors in big cities, Nancy Pelosi, Marxist infiltration of our institutions, Chuck Schumer, Adam Schiff, or even Joe Biden. Chief Justice John Roberts is the most dangerous man in America.
PJ Media’s Matt Margolis reported on what happened Friday, and expressed the same incredulity I did:
On Friday, Chief Justice John Roberts inexplicably sided with the liberal wing of the Supreme Court, denying Calvary Chapel Dayton Valley’s request to strike down Nevada’s blatantly unconstitutional 50-person cap on worship services.
While churches in Nevada have a 50-person cap, casinos, restaurants, and other types of businesses in the state are allowed to operate at 50 percent capacity as long they incorporate social distancing measures.
The 5-4 denial of their request was made without explanation from the majority, but with dissents by Justices Alito (joined by Justice Thomas), Kavanaugh, and Gorsuch.
Just in case you’re unfamiliar with the First Amendment to the Constitution, it contains no qualifier to the whole freedom of religion thing, nor the whole equal application under the law thing. Neil Gorsuch said as much in his dissent when he wrote, “In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
This decision, notably lacking any courageous explanation by the majority, has far-reaching consequences. The precedent allows other states to act on their desires to shut down churches, and only churches, in the name of fighting the pandemic.
Roberts has made a career out of twisting himself into logical and legal pretzels in order to side against the conservative, originalist, textualist justices on the Supreme Court. Conservatives expressed concern when President George W. Bush nominated him.
We found out those concerns were well-founded in the Obamacare decision. He established the template for future decisions with that one, when he invented from whole cloth the notion–not even argued by Obama’s attorneys–that the personal coverage mandate constituted a tax, and therefore passed Constitutional muster.
Since then, he has utilized similar inventiveness and imagination to conjure up all sorts of rulings. In his decision not to rescind DACA, he acknowledged that the policy wasn’t illegal, but decided that the Trump administration didn’t apply to rescind it properly. I wrote about Sen. Ted Cruz (R-TX) and his reaction to that ruling last month:
Cruz points out the legal knots into which Roberts tied himself:
The majority holds that, of course, an administration can stop an illegal policy. “All parties agree”–that’s a quote–all parties agree that “DHS may rescind DACA.”
The majority then says, “You know what? The agency’s explanation wasn’t detailed enough.”
He also reflects on the pattern of legal mumbo-jumbo Roberts has engaged in to side with the liberals on the court:
That is exactly the sleight of hand that Chief Justice Roberts did, almost exactly a year ago today. In another case where the Chief Justice joined with the four liberals and struck down another one of the Trump administration’s policies. The Commerce Department, which is charged with conducting a census every ten years, wanted to ask a commonsense question: “Are you a citizen of the United States?” That’s a question that has been asked in nearly every census since 1820.
Calling the Democratic Party and the press the party of illegal immigration, Cruz proceeded to destroy that argument too:
What did John Roberts do? He wrote an opinion that says, “Yes, of course the Commerce Department has the authority to ask in the census if you’re a citizen.” Of course they have!
But, no, John Roberts, a little twist of hand. You know what? The Commerce Department didn’t explain their reasoning clearly enough.
Cruz is clearly onto the game Roberts has played, piercing the veil to reveal him as a pro-amnesty NeverTrumper. Roberts gave us Obamacare, and now he’s given us amnesty too.
Cruz was equally critical of Roberts in the Nevada church decision:
Roberts has had a particularly poor showing this year, with decisions about DACA, creating new Title VII protections for transgendered people where none existed in the text of the act, striking down a Louisiana law requiring abortion clinics to be clean, dismissing a case from New York in which gun rights could have been strengthened, rewriting a regulation on behalf of the EPA, applying judicial precedent in constitutional decisions (over the text of the Constitution), and running interference for the democratic operative mislabeled as a whistleblower in the impeachment trial.
It’s more than just NeverTrumperism, of course. Roberts has been bad for the majority of his tenure, since he was nominated in 2005 to replace the deceased William Rehnquist as Chief Justice.
The biggest weakness that Roberts brings to the court is what is so damaging to the Constitution–his utter addiction to stare decis, his willful refusal to overturn any prior court’s decision. If precedent is set, by golly, that’s good enough for him. Never mind what the Constitution says, or what the Framers clearly intended when they wrote it, or how flawed the decision may be.
Perhaps his second biggest weakness is that he is a techocrat. The DACA ruling is one example, in which Roberts uncritically relies on an unelected bureaucratic agency. Obamacare is another example. Yet another example is Kisor v Wilkie, in which Roberts sided with the liberal justices in refusing to deny what’s known as Auer deference, which gives governmental agencies almost unchecked power to interpret its own rules without congressional or judicial oversight. The Federalist Society says it “enlarges administrative authority in ways at odds with basic constitutional structures and due process requirements.” He relies on both precedent and the mythical rights of a governmental bureaucracy in that one.
Taken together, his cop-outs on precedent, his technocratic bent, and his willingness to gang up with the liberal justices to make law from the bench make Chief Justice John Roberts the most dangerous man in America today.