John Roberts, The Judicial Supremacist

I was curious to know if September would bring about a change in my thinking. Cooper v. AaronCould you save? Roe V. WadeStop S.B. 8. After argument Whole Woman’s Health, v. JacksonI was concerned that Justices would give way to judicial supremacy. The Warren Court was not the path of majority of the Court, but it did prove to be a blessing. Unfortunately, Chief Justice Roberts couldn’t resist this temptation.

The four-page skeletal concurring is inadequate as a threshold matter. Roberts is an excellent attorney. Roberts is a brilliant attorney. However, he only offers a cursory answer to Justice Gorsuch’s analysis regarding the clerks. He is not a complete expert. Young“Recognizes that suits in enjoining state court proceedings may be necessary.” Justice Sotomayor calls this critical sentence Young Asdicta”). Roberts’ cases do not include clerks. None of these precedents were quietly changed. Ex Parte Young. Gorsuch might have been shot at if Roberts had the goods. He fired only blanks.

The final sentence of Roberts’ opinion is my take.

S. B. has a clear and direct purpose. 8. has been to annul the Court’s decisions. However, it is a fundamental principle that the Constitution “fundamental law and supreme law of the country” and “[i]”It is emphatically the responsibility and province of the judicial branch to define the law.” Marbury v. Madison1, 1 Cranch 37, 177 (1803). Indeed, “[i]The constitution becomes an unofficial mockery when the legislatures in the various states can annul United States court judgments and terminate rights derived from those judgments. United States v. Peters5, Cranch 115 & 136 (1809). It doesn’t matter what the nature of the federal rights infringed is; it is our Constitutional System that has the Supreme Court playing a critical role.

Marbury Nothing was said about the states that “nullify” Supreme Court rulings. This sentence is from Marbury The Court was able to resolve a specific case in cases where there is conflict between the Constitution and a statute. Roberts’s misinterpretation MarburyThis is just a repeat of Cooper v. Aaron. Indeed, CooperJustice Brennan drafted the majority of this document. It cites exactly the same sentiment as Justice Brennan. Marbury.

The Constitution is the supreme law of the land as Article VI of the Constitution declares. Referring to the Constitution in 1803, Chief Justice Marshall, speaking on behalf of a unanimous Court, declared the case notable of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” In this decision, the fundamental principle was that the Federal Judiciary is the supreme authority in the interpretation of the Constitution’s law.This Court has always held that the principle is an essential feature of our constitution and Country has respected it ever since.

Roberts channels CooperHis citation of Marbury.

CooperJustice Brennan is also quoted United States v. PetersMarshall’s other, less well-known decision is.

The Constitution cannot be attacked by any state legislator, executive, or judicial official without his agreement to support it. Chief Justice Marshall spoke on behalf of a unanimous Court, saying: “If the legislatures in the various states can, at their discretion, cancel the decisions of the United States courts and destroy rights under them, then the constitution becomes a mockery.” . . .” United States v. Peters, 5 Cranch 115, 136.

 Whole Woman’s HealthRoberts incorporates the same sentence. PetersYou can also find them here.

Discuss PetersIn my article Cooper (pp. 1178-1183). The citation, however, is incomplete. Justice Brennan did not quote all of Marshall’s opinion as Roberts. This is the complete passage. After the semicolon, Marshall’s critical analysis is found.

The constitution becomes an unholy mockery if the legislatures in the various states can annul United States court judgments and endanger rights derived from those judgements. The nation lacks the ability to enforce its laws through the use of its tribunals. This fatal result must be avoided by everyone; the Pennsylvanians, as well as the residents of other states, should feel an intense interest in opposing the principles that are so harmful to the Union and in abating the consequences which could prove fatal.

PetersPennsylvania’s state courts attempted to reject federal court judgments by holding the federal courts lacked the jurisdiction to rule. This means that “the nation has been stripped of all the tools necessary to enforce its laws through the instrumentality.” Its very own tribunals.” Federal courts would not be able to decide cases within the congressional jurisdiction. In summary, Peters The principle of interstate interference with binding Federal Court judgments was established. Peters This has nothing whatsoever to do with the states’ (purportedly nullifying) federal law. This case is irrelevant. Whole Woman’s Health, v. Jackson. Roberts did not give Marshall the proper context. Roberts embraced Brennan’s misleading editing. I was expecting better from Chief copy-and paster at the Warren Court.

Justice Sotomayor’s openly applauded dissent was joined by Justices Kagan & Breyer. Cooper.

The following is a description of the product: The best momentsThe Court has made it clear that Constitution rights can’t be nullified by either state legislatures or executive or judicial staff directly, but they are not subject to indirect nullification by them using evasive techniques. . . It could be done ‘ingeniously’ or ‘ingenuously’. ” Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). It is difficult to believe that today’s Court has such courage. 

“Finest moment”? Not quite. This is the superficial result. Cooper This may be a positive thing. The actual result was not favorable, because the courts ignored it. However, the logic was in CooperHis words were both shrewd and unassuming. The Warren Court Par for the Course. Chief Justice Roberts was unable to find the courage to quote Cooper. He still enjoyed the taste of supremacy in judicial matters.

Soon, I’ll have more to share about “judicial courage”.