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Is Chief Justice Roberts “Swimming In the Middle?”

Is Chief Justice Roberts “Swimming In the Middle?”

Jonathan Turley thinks Roberts will become the swing vote if Justice Kennedy retires.

Appearing on today’s Morning Joe, law professor Jonathan Turley noted that Chief Justice John Roberts teamed with Justice Anthony Kennedy to devise an exception to the Court’s ruling of yesterday that permitted President Trump’s travel ban to remain in place. Under the exception, the ban does not apply to foreign nationals with a “bona fide” relationship with a person or entity in the United States.

Turley said that as of late, Roberts has been “swimming a lot in the middle of the pool,” has become very Anthony “Kennedy-like,” and would become the new swing vote should Kennedy retire.

JONATHAN TURLEY: What I think is really interesting is John Roberts, both in this case and in some other cases, he was swimming a lot in the middle of the pool. And on this one, he came up with Kennedy on this type of exception. And many of us are looking at him, because if Kennedy does leave the Court this year or next year, that swing-vote role will shiftly slightly to the right to John Roberts. And at the end of the term, he was being very Kennedy-like.

Chief Justice John Roberts hasn’t gone full David Souter, the SCOTUS Justice appointed by Bush 41 who turned out to be a total liberal. But Roberts has been a disappointment to people hoping he’d be a Scalia-like addition to the Court.

As our Professor Jacobson recently wrote, it was Roberts who sided with Court liberals to salvage Obamacare in an “outrageous holding” that found Obamacare’s mandate penalty to be authorized under Congress’ taxing power.

All the more reason for President Trump to appoint a true respecter of the Constitution should Kennedy indeed retire.


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kenoshamarge | June 27, 2017 at 9:04 am

Anyone that thought Roberts would be Scalia-like wasn’t paying attention. He’s, so far as I can see, a moderate and always has been. That’s not a crime but it is dishonest when he knew that the Republicans thought they were sending a strict conservative to the court.

    Milhouse in reply to kenoshamarge. | June 27, 2017 at 11:20 am

    What Republicans thought they were doing was none of his concern. He never promised the Republicans anything, and it wasn’t his job to disabuse them of any delusions he suspected they might have had. In his hearings he made clear that he placed a high value on precedent and would be reluctant to overturn it. I knew he was a moderate when he specifically endorsed Reich, the then-new extension of the infamous Wickard, as now-binding precedent.

    I don’t get why people keep attacking his opinion in NFIB v Sibelius, which is very well reasoned, rather than his much more baffling decision four years later in King v Burwell. That is the case that ought to have sunk 0bamacare.

…or, Turley is seeing glimmers of hope through his rose-colored glasses.

We’ll see…

Thomas, who is a massive “appointment” (the opposite of “disappointment”) is a power to reckon with on the Court as it stands. Gorsuch seems to be settling in as his wing-man.

    4th armored div in reply to Ragspierre. | June 27, 2017 at 10:12 am

    Glad to see that you sound much more sane about DJT’s choices of court judges and perhaps rethinking your hate of the President.

    VaGentleman in reply to Ragspierre. | June 27, 2017 at 1:32 pm

    Thank God we ignored your stupid advice and voted for Trump!

      Ragspierre in reply to VaGentleman. | June 27, 2017 at 7:43 pm

      My advice was to vote your conscience.


        VaGentleman in reply to Ragspierre. | June 28, 2017 at 5:23 am

        What a trite comment.
        Doesn’t everyone vote their conscience? Tell me who doesn’t vote their conscience. That was just code for ‘I hate Trump and wish Cruz had won.’
        You don’t support people voting their conscience when they disagree with your conscience. You call them names and impute their integrity.

        Ragspierre in reply to Ragspierre. | June 28, 2017 at 9:37 am

        What a pack of lies comment.

        Many T-rump voters did not “vote their conscience”. They held their noses and voted for Mr. Establishment, as you insisted they do.

        How many times have you called me a “child” for not voting for Der Donald? You insisted that I MUST violate my conscience and vote for the Great Goad Cheeto. I declined your tantrums.

        The word you wanted was “impugn”, and you lied. I never called anyone anything for voting for T-rump. You’ve called me everything but a child of god, including a traitor and a coward.

        You are a sack of excrement, and a cult following liar.

        VaGentleman in reply to Ragspierre. | June 28, 2017 at 3:43 pm

        1- They held their nose and voted as they did because their conscience told them to do so. Voting for something you don’t like is still voting your conscience if your conscience tells you it leads to a better result than voting for the other choice(s). That’s what many did and they have been proven right.

        2- Children decide what to do by just following rules. Adults weigh the outcome of their choice. You have been unable / unwilling to explain how your choice was better for conservativism than voting for Trump would have been. You just quote your ‘I won’t vote for’ rule. By your own admission, once you applied your rule you never gave any thought to what the outcome would be on the cause you claim to champion. Why didn’t you consider the real world effect of your decision?

        3- You constantly refer to Trump supporters as T-rump suckers and worse. You accuse them of not being true conservatives, a claim you base on their vote for Trump. Yet you never explain why not voting for Trump was better for conservativism – you just rely on your rule. You condemn them for not following YOUR rule, whose application YOU can’t / won’t explain. Why don’t you respect their intelligence and explain why your way was better? Do you think they are too stupid to understand the explanation or don’t you have one?

Mr. President, it is time to lean on Justice Roberts to retire from the bench.

    tom swift in reply to MTED. | June 27, 2017 at 1:10 pm

    Maybe Trump could talk him into it, but there’s no way to force him out, short of impeachable offenses.

    FDR came up with all sorts of creative ways to get around Justices who impeded his plans to transform the country, but all were thwarted … and a good thing too.

    No, it looks like Roberts is there to stay.

THAT would be a catastrophically terrible idea, and about the very last thing Der Donald needs to do.

Somebody else…maybe…

    My bets on retirements during a likely 8 years of a Trump administration:

    2017 / 2018 – Kennedy

    2020-2021 – Ruth Bader Ginsburg (Notorious RBG) (AFTER a Trump Re-election, unless she dies on the bench first). She will NOT want to retire, but her health will eventually prevent her from being an active member of the Court.

    ???? – Stephen Breyer

Hence why I refer to the Chief Justice as:

John Roberts the Traitor.

John Roberts has turned out to be Harriet Miers revenge.

    Tom Servo in reply to snopercod. | June 27, 2017 at 10:36 am

    You remind me – the Harriet Miers fiasco was when I suddenly grokked to the fact that I was giving GWB far too much credit and deference than he deserved.

    I still think he was a decent president, but he did some bone-headedly stupid things.

      Milhouse in reply to Tom Servo. | June 27, 2017 at 11:29 am

      Yep, he was also the first US president ever to dare openly call for a “Palestinian” state. Because his understanding of the whole dispute was defective, and he honestly thought this was the right thing to support.

      He’s a highly intelligent person, but until he decided to run for president he took no interest in foreign affairs, and had never bothered to find out what any international dispute was about. It simply didn’t concern him. When he needed to know this stuff, he took a crash course with Condoleezza Rice. Unfortunately by then the Israeli government had compromised to the extent of accepting a so-called “two-state solution”, so he thought that was the pro-Israel position that he ought to take, not even realising that it was merely a concession to terror rather than what ought to happen.

      tom swift in reply to Tom Servo. | June 27, 2017 at 1:00 pm

      Why, what was the problem with Miers? That was no sillier an idea than appointing Kagan. Just another White House lawyer with no judicial experience, a tyro catapulted to the top ranks for no apparent reason.

      Of course, some see the Miers fakeout as a bit of political choreography which enabled Bush to put Alito on the court in the face of Democratic opposition which had vowed to resort to scorched-earth tactics to block any conservative nominee.

      But some think that sort of thing is entirely accidental.

        Milhouse in reply to tom swift. | June 27, 2017 at 2:46 pm

        Miers was a political liberal who happened to be a close associate of the president. She didn’t join the administration because she believed in conservative principles but because she was a Friend of W. On the Supreme Court she would have been a disaster; another Souter or worse.

MaggotAtBroadAndWall | June 27, 2017 at 10:20 am

Being the swing vote will make him the most powerful justice as well as one of the most powerful people in the country. It will give him the power to define how the “Robert’s court” is viewed by history. I wish he were more ideological, but I can see why he would want to jockey for the swing vote position.

Connivin Caniff | June 27, 2017 at 10:36 am

At least until his kids are too old to be repatriated to Ireland.

Ever since his Obamacare mandate penalty as a “tax” decision I cannot see Justice Roberts as anything but seriously compromised. Having put himself in that position I expect that any “swing” vote will be with the Left.

    Milhouse in reply to gracepc. | June 27, 2017 at 11:13 am

    Did you ever bother to read the decision? What flaw do you find in its argument? In what way does the alleged mandate resemble an actual mandate and not a tax? Literally the entire argument for calling it an unconstitutional mandate is that Congress said so; since when have you ever taken Congress’s word for anything?

    Roberts’s decision can be summed up in two sentences: (1) Mandates are unconstitutional; taxes are not. (2) Congress lies; when determining whether a law is constitutional, look at what it does, not at what Congress says it does. Which of those two sentences do you object to?

      rotten in reply to Milhouse. | June 27, 2017 at 12:56 pm

      He shouldn’t have ruled that it was a tax, when none of the Courts were briefed on the argument.

      If the courts had been briefed on ‘is Obamacare a tax’ then they would have had to rule that Obamacare was not a ‘headcount tax’ or ‘Tax on Breathing’ which it clearly is. Capitation taxes are specifically prohibited by the text of the Constitution.

      Instead the issue was never addressed.

        tom swift in reply to rotten. | June 27, 2017 at 1:07 pm

        Instead the issue was never addressed.

        The Dems in Congress were prepared for it, but they got away with it unchallenged.

        It was the reason for Reid’s strange idea to take a routine House bill, gut the text entirely, and substitute his ObamaCare abortion for it, thus pretending—in a manner which couldn’t possibly fool anyone—that O-Care had originated in the House, as all tax bills must.

        Without that dodge, once Roberts declared it a tax, it should have died on the spot.

        In other words, quite aside form being a lousy bill, AHCA’s passage, and its Constitutional legality, were and are thinly-veiled frauds.

          Milhouse in reply to tom swift. | June 27, 2017 at 3:09 pm

          It was the reason for Reid’s strange idea to take a routine House bill, gut the text entirely, and substitute his ObamaCare abortion for it, thus pretending—in a manner which couldn’t possibly fool anyone—that O-Care had originated in the House, as all tax bills must.

          This is not a “strange idea”; it’s completely routine, both in the US Senate and in other legislative bodies. And Reid did not do this in anticipation of the “mandate” being defended as a tax, but because the bill contained miscellaneous other taxes and charges. The idea was that the House and Senate bills would get sorted out in conference, and then both houses would pass whatever the conference came up with, as normally happens. But Kennedy’s death put paid to that plan. Instead the House had to adopt the bill the Senate had passed, and then try to amend it via reconciliation, which limited the kind of amendments that could be done — i.e. exactly the same problem the Republicans are facing now.

        Milhouse in reply to rotten. | June 27, 2017 at 2:53 pm

        What the @#$% are you talking about? Where did you get the idea that it wasn’t briefed? That is not true.

        And where on earth did you get the idea that poll taxes are “specifically prohibited by the text of the Constitution”? On the contrary, they are specifically permitted by the text of the Constitution.

healthguyfsu | June 27, 2017 at 11:38 am

Yes, retire more judges…so Trump can nominate more!

I’m convinced Roberts was blackmailed by the Obama admin to allow Obamacare implementation even though he knew it was unconstitutional. They have something on him regarding the adoption of his children.

Leftists Point Out Chief Justice Roberts Of SCotUScare is Moderate in the Middle, Not Conservative something everyone’s known since.

I’d argue that at this point Roberts is in fact a leftist, as so many “conservative” justices have turned out to be. His presence in the majority of the Peruta cert denial seals it for me.