Mourning Chief Justice Roberts's 20th Anniversary Part II: Top Ten Worst Moments of the Roberts Court
Two weeks ago, in recognition of the twentieth anniversary of John Roberts being named as the Chief Justice of the Supreme Court, I listed what I thought were the top ten worst cases of the Roberts Court. Below are the top ten worst moments of the last twenty years unrelated to the Court's decisions. These are in no particular order and with one exception include examples from justices other than the Chief.
1) Umpire-in Chief
Okay, technically this happened before John Roberts was confirmed, but it did foreshadow the next two decades. At his confirmation hearing, Roberts uttered these words that will live in infamy:
Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have modesty to be open in the decisional process to the considered views of their colleagues on the bench.
Chief Justice Roberts has voted to dramatically change the law of affirmative action, abortion, gun rights, separation of powers, free speech, the establishment clause, and the free exercise of religion, among many other examples. He has changed the rules of the constitutional game as much or more than any Chief Justice in American history. The hypocrisy is stunning.
2) Justice Scalia Shows his True Colors
At oral argument in Fisher v. Texas, an affirmative action case involving the University of Texas, Justice Scalia said the following:
There are . . . those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, … a slower-track school where they do well. . . . One of the briefs pointed out that most of the Black scientists in this country don't come from schools like the University of Texas. . . . They come from lesser schools where they do not feel that they're that they're being pushed ahead in classes that are too fast for them. . . . I'm just not impressed by the fact that the University of Texas may have fewer [Blacks]. Maybe it ought to have fewer. And maybe some you know, when you take more, the number of Blacks, really competent Blacks admitted to lesser schools, turns out to be less.
These statements reveal much about Justice Scalia's character regarding race, education, and elitism.
3) Supreme Corruption
As I and many journalists have documented, without any denials from Justice Thomas, the billionaire Harlan Crow has bestowed on Justice Thomas, his family, or his community:
$175,000 for a new Clarence Thomas Wing at the Justice’s childhood library in Pin Point, Georgia.A Cruise through the Greek islands on Crow’s yacht, the Michaela Rose.
Land in Pin Point, Georgia, worth $1.5 Million to be the site of a historical museum commemorating the community that raised Clarence Thomas.
$500,000 in salary to Ginni Thomas for her work with the conservative advocacy group, "Liberty Central."
Free transportation to and lodging at Crow's private lakeside resort, Camp Topridge where Thomas spent time with executives at Verizon and PricewaterhouseCoopers, as well as with major GOP donors.
A trip through Indonesia.
Free transportation to and lodging at Bohemian Grove, the all-male retreat in northern California. There were at least six of these trips over the years.
The cost of private school for Justice Thomas's son.
Money to defray the cost of the house of Justice Thomas's Mother.
No public official in America, much less a Supreme Court Justice, should accept such largesse.
4) Holy Inappropriate Devotion
The month after Justice Alito wrote the majority opinion in Dobbs v. Jackson Women's Health Organization, the case that overturned Roe v. Wade, Justice Alito went to Rome to give a speech at a Notre Dame-sponsored event. It was as ungracious a victory lap as one can imagine. Among other things, he chided foreign leaders for expressing disapproval with the decision and criticized people who he claimed were fighting against "religious liberty." CNN reported that his speech was "dripping with sarcasm," and another Roberts Court Justice's true character was revealed.
5) Holy Partisanship
Speaking of Justice Alito, Supreme Court justices should not (obviously) have partisan symbols prominently displayed on their homes. And yet ... from Politico:
Supreme Court Justice Samuel Alito has been infuriating his critics for years.... But the revelations over the last two weeks from The New York Times concerning the political flags flown at Alito’s homes — an upside-down American flag in the days after Jan. 6, 2021, and an “Appeal to Heaven” flag in the summer of 2023 — have pushed Alito’s behavior into an entirely different realm, one that raises serious questions about Alito’s partisanship, his ethics and the integrity of the court.... The upside-down American flag has historically been used as a sign of distress by the U.S. military but became a symbol of support for Donald Trump’s “Stop the Steal” movement following the 2020 election, and the Appeal to Heaven flag has been used by Christian nationalists. Both were flown by Jan. 6 rioters.
And, as Politico reported in the same article, it appears Alito may have lied about how the upside-down flag ended up on his house by blaming it on a wife's altercation with a neighbor which may have happened after the flag was first put up. In any event, showing support for the January 6 rioters is just so...Alito.
6) Holy Time, Place, and Manner
Speaking of Justice Alito, who can forget him mouthing the words "not true," during President Obama's 2010 State of the Union address to the Congress and the country. Whether what Obama said was accurate or not, how about this: grow up.
7) A Terrible Temper Tantrum
After being accused of sexually assaulting a woman while in college, then Judge Kavanaugh didn't respond with calm denials or perhaps suggesting a good faith misidentification but instead yelled, ranted, and screamed during his confirmation hearing. He exclaimed: "This is a circus. The consequences will extend long past my nomination.... I fear that the whole country will reap the whirlwind.... And as we all know in the United States political system of the early 2000s, what goes around comes around."
Justice Kavanaugh has certainly made good on his threats.
8) Holy Not Again!
Speaking of Justice Kavanaugh, despite the skepticism expressed by most lawyers, pundits, and law professors of all political persuasions that Supreme Court justices are not just umpires as Chief Justice Roberts said during his confirmation process to the laughter of all, here is Justice Kavanaugh at his confirmation hearing almost 15 years later: “A good judge must be an umpire – a neutral and impartial arbiter who favors no litigant or policy.”
In the [in]famous words of tennis star John McEnroe, "you cannot be serious." If there is anyone out there who still thinks Supreme Court justices act like umpires applying pre-existing rules, please read footnote 44 in the Dobbs opinion, which is a 2-1/2 pages-long single spaced partial list of the major cases the Supreme Court has overturned.
9) Holy Bad Judgment
Four, count them four, of the Justices who voted to overrule Roe attended a Federalist Society dinner just a few months later. They were Justices Alito (of course), Gorsuch, Kavanaugh, and Barrett. Both Alito and Barrett spoke at the dinner, and both received standing ovations. Needless to say, none of the four would have been nominated to the Court without the blessing of and support of the Federalist Society Leaders, most notably Leonard Leo. For example, the New York times reported: "Deep into the Senate’s 68-page questionnaire of Judge Neil M. Gorsuch, the Supreme Court nominee was asked to describe how he had come to President Trump’s attention. The first thing he wrote was, “I was contacted by Leonard Leo.”
Yes, Justice Kavanaugh, "what goes around comes around," and in the case of the Roberts Court justices, with a healthy serving of fine food and cold, unfeeling vengeance.
10) Bad Judgment But Also an Apology
During the 2016 Presidential campaign, Justice Ruth Bader Ginsburg publicly criticized Donald Trump, saying among other things that he was a "faker." These comments were not appropriate for a Supreme Court justice.
But, and it is a big but, she followed these remarks up with an age old idea that most people use when they make a mistake. I'm not talking about a temper tantrum, or a lie, or a threat but this thing called an apology: “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”
None of the first nine bad moments listed in this post was followed by an apology or even a clarification from the justice involved, which is as good a symbol for the Roberts Court conservatives as any (can you imagine Justice Scalia ever apologizing for anything?). Always believing they're right, never in doubt, never apologize. Hmmm...who does that sound like?