I cried there is no justice
As they led me out the door
And the judge said, “this isn’t a court of justice, son
This is a court of law.”
Billy Bragg, “Rotting on Demand“
“A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.”
Thomas Paine, Common Sense
Sometimes bias and propaganda are staring you right in the face – even frantically waving, as if to draw attention to themselves – and still, somehow, they continue to be unnoticed, implicitly swallowed by all, universally accepted instead of widely derided.
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Nearly everyone writing about John Roberts, including those denouncing his recent opinion on money in politics, has called him “Chief Justice” John Roberts – except not in an ironic way.
The New York Times wrote: “Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the overall limits could not survive First Amendment scrutiny. ‘There is no right in our democracy more basic,’ he wrote, ‘than the right to participate in electing our political leaders.'”
No matter how vociferous the commentary against Roberts, the honorific “Justice” remained firmly prefixed to his name. Amy Davidson of the New Yorker: “Chief Justice John Roberts’s majority opinion in McCutcheon v. Federal Election Commission, in which the Supreme Court struck down aggregate limits on campaign donations, offers a novel twist in the conservative contemplation of what Nazis have to do with the way the rich are viewed in America.” Jeffery Sachs tweeted: “Is Justice Roberts a moron or does he just take us to be morons? The reactionaries on the SC are trashing what little democracy remains.” Chisun Lee, counsel for New York University’s Brennan Center for Justice: “Chief Justice Roberts is narrowing the concept of corruption to essentially bribery, which is already against the law.” James Fallows: “we have a chief justice who…neither [in the McCutcheon] judgment nor the Obamacare one had the slightest connection to the person who so self-effacingly presented himself for confirmation nine years ago.”
Even right-wingers – who are in my experience more careful about succumbing to linguistic convention that doesn’t comport to their political aims – do so in this case. In response to Roberts’ ruling in favor of Obamacare, Michael Savage fumed: “Justice Roberts is a sellout. Period.” He’s a “turncoat,” says Savage, but Roberts still apparently embodies “Justice.” Similarly, Rush Limbaugh: “The chief justice of the Supreme Court of the United States is now run by the American media.”
A rare exception was John Perry Barlow, co-founder of EFF, who recently tweeted: “It’s a pity ‘Justice’ Roberts didn’t declare the American Plutocracy on April Fool’s Day. Would have been funnier.” There’s perhaps more basis for the scare quotes than Barlow is aware.
Certainly, the Constitution does refer to his title: “When the President of the United States is tried, the Chief Justice shall preside.” And the Supreme Court web site does list him as “John G. Roberts, Jr., Chief Justice of the United States.”
The thing is, that’s not how he views himself. Roberts has explained to college audiences: “What is morally just and right – that’s not my job.”
Jan Crawford Greenburg, in her book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, gives the back story to his articulating this position:
“Roberts had spent his entire legal career thinking about the proper role of the courts. He ardently believed that courts should be modest and restrained, and that judges were not supposed to try to solve society’s problems. He disdained the more liberal point of view that judges should be more willing to step in and try to improve things.
“A long-ago conversation between two legal titans of the twentieth century illustrates the different perspectives. Justice Oliver Wendell Holmes, a leading proponent of judicial restraint, had just had lunch with Judge Learned Hand. As they said good-bye, Hand told Holmes, ‘Do justice sir, do justice.’ Holmes responded swiftly: ‘That is not my job. It is my job to apply the law.’ John Roberts admired Holmes’s approach to judicial restraint.”
When I first posted the thought that “‘Justice Roberts’ should be stripped of that title” several years ago, Richard Grossman, who authored Taking Care of Business: Citizenship and the Charter of Incorporation, commented:
“Justice Roberts is correct. He never promised ‘morally just and right.’ He took an oath to preserve, protect and defend the Constitution of the United States. Just as ALL judges so swear. And ALL local, state and federal public officials, including presidents who appoint and senators who confirm. And ALL lawyers. And ALL members of the military.
“So what’s the Constitution? Take a look – where does it say ‘morally just and right’? Go ask dead chief justices John Jay, John Rutledge, John Marshall, Roger Taney, Caleb Cushing, Morrison Waite, William Howard Taft, ad nauseam….
“Their ghosts (so alive and well) can tell you that the Constitution was written to enable the few to govern the many; to camouflage tyranny and denial with their majestic ‘rule of law.’
“You want ‘morally just and right’? Write a new plan of governance. And don’t forget to expunge and upchuck several thousand years of Greek Empire/Roman Empire/Church Empire/Teutonic/Anglo-Saxon/Norman/English Empire/American Empire slavery and property theory, work and nature doctrine.
“I say: keep on spilling the beans, Johnny. Tell us more about the Constitution and the law. Sustain your distinguished logorrhea and we’ll give you a Golden Mouth award.”
Of course, the Constitution does claim in its preamble to “establish justice,” but just as Harry Blackmun swore off “tinkering with the machinery of death,” Grossman had little patience for dealing with marginal reforms of the current legal regime.
I asked if perhaps “chief legal administrator Roberts” would be a more suitable title. Grossman replied: “Well, the hitch here is the Supreme Court. Roberts, like all justices and chief justices [sic], is just a cog. The constitution is the country’s bible, law is our religion, justices are our priests. Maybe we can call Roberts: ‘Head Priest.’ His Wholiness. Iran has its Supreme Leader, and Americans laugh. We have our Supreme Court, and Americans genuflect. Time to rethink the whole shebang…”
I don’t know if Grossman – who passed away a few years ago – meant to say “His Holiness” or if “Wholiness” was intentional. In either case, it’s a fitting thought. The pope is formally called “His Holiness” by heads of state and such, but how many serious journalists would use the term – especially if a given pope had said: “What’s holy – that’s not my job.”
I asked Grossman: “Doesn’t the SC undermine parts of the constitution – or at least the Bill of Rights?” Grossman paints a picture of the court totally contrary to those typically put forward: “The Supreme Court, early on, claimed the authority to declare what the written constitution means. The justices [sic: priests] claim they can do anything they want…and have. For ex: the language of the first amendment is clear and simple: ‘Congress shall pass no law….’ Congress has passed many laws abridging freedom of speech, etc. And the Supreme Court has declared them constitutional. So the short answer is, yes, the court has often redefined the written words in the text, has made up words, has concocted new meanings, etc. But the constitution itself was designed to be a minority-rule plan of governance. The Supreme Court has been doing what it was set up to do.”