The Patriot Post® · John Roberts and the Siren Song of Institutionalism

By John J. Bastiat ·

Is it the case that Supreme Court Chief Justice John Roberts is now reliably unreliable — a.k.a. the “swing” vote, a la Anthony Kennedy, Sandra Day O'Connor, David Souter, and other Republican-nominated disasters? Didn’t we all rave back in 2005 at the idea that this new, relatively young, traditionally conservative jurist would bring focus, logic, and prudence to the bench? Wasn’t he seated from Day One by then-President George W. Bush into the chief justice’s chair? Didn’t we imagine he would at least be an apt replacement for the late William Rehnquist? What happened?

Well, for one, the same thing happened to him as has happened to every other justice whose juridical compass isn’t driven by a fundamental set of principles and is subject to external opinions and influences: It becomes flexible, fungible, and frangible. Justice Roberts likewise gets an “F” (or three). We discussed this issue briefly back in February, but in light of Roberts’s most recent moves — to join Court leftists in relaxing mental competency standards in favor of death row inmates and in blocking President Donald Trump’s efforts to stop the waves of illegal immigrants at the Mexican border — we thought this an appropriate moment to reexamine Roberts’s hubcapping off the conservative wheel’s moorings and into the leftist badlands into which he’s now aimlessly careening.

Let’s start with the concept conservatives see as foundational, the two-pronged doctrine that became High-Court bedrock thanks to one of the Court’s greatest jurists, the late Antonin Scalia: Textualism and Originalism. The former term simply means a jurist should read the law through the plain-language lens by which it was intended to connote meaning — namely, its text. If that meaning is not obvious, however, then the analysis broadens to examine the context of the language as well as the drafters’ original intent when the law was written (originalism). Adhering to these two doctrinal principles curbs tendencies of courts to stray into activism, whether leftist or conservative.

And activism is easy to stray into: Everyone wants the “right” (read: “fair, from our point of view”) result. The problem is that the ends to such “right” results don’t always — or even usually — justify the means used to achieve it. A precedent-setting ruling today that yields the “right” result can have disastrous results tomorrow, when an entirely different result — one that is neither “right” (fair) nor just — is drawn from the judicial and logical goo crafted to obtain the former, “right” result. It is from this reality that the age-old legal maxim, “Hard cases make bad law,” came into being. Reasoning — right reasoning, in the sense of starting from First Principles and applying ironclad logic to arrive at a solid, valid conclusion — matters. Justice Roberts has apparently abandoned this principle in favor of a more expedient value.

Instead, Roberts stakes his legacy on the concept of “institutionalism.” Alluding to this philosophy last month the chief justice stated, “People need to know that we’re not doing politics. They need to know that we’re doing something different, that we’re applying the law.” Just like, say, in the ObamaCare decision? That decision was a masterstroke of “institutionalism.”

The central idea behind this approach is that because the Court’s reputation should reign paramount, maintenance of the institution of the Supreme Court matters more than anything else. By this standard, the “institution” of the Supreme Court is validated through the popular public, thus preserving its reputation in the public eye. But this completely misses the point: The Supreme Court of the United States (SCOTUS) does not regain a solid reputation by winning a popularity contest with the American public — especially a contest rigged by leftists’ ends-justifies-the-means convictions and an all-too-accommodating Leftmedia.

What Justice Roberts is apparently not seeing in his attempt to keep the Court out of politics for the sake of this “institution” is that his very efforts to do so are political decisions. When, for instance, Justice Roberts stiff-arms weighing in on President Trump’s decision to end the previous administration’s deferred-deportation program — in the face of active attempts by judges in lower courts to undermine the president’s constitutional, executive authority to do so — he has, in effect, made the political decision to keep SCOTUS from stepping up to the plate to do its job. Not only does this fail to keep the Court “out of politics” but it also destroys the very credibility Justice Roberts purports to esteem above all else.

Regarding the Court’s precious reputation, the reality is that the Court gains its credibility solely from applying the facts to the law and arriving at valid conclusions. In other words, it necessarily ignores popularity for the sake of justice — as any reputable court would do.

As to the other “institution” Justice Roberts heavily leans on in justifying his position — that of stare decisis, the judicial doctrine that the Court should let previous Court decisions (and thus law) stand — it is a sound doctrine. Until it isn’t. That is, as long as this doctrine isn’t used to undermine the Constitution or the plain language of constitutionally valid statutes enacted by Congress and signed into law by the president, we’re all for it: High Court decisions shouldn’t be easy to overturn without solid reasoning. Otherwise, we put stare decisis right up there with “institutionalism.”

The bottom line is that Justice Roberts is seemingly sometimes too focused on how his “institution” is being perceived by the Left and not focused enough on the basic principles that should guide a Supreme Court justice and restore the Court’s reputation with those who count: The American people.