During his confirmation hearing, John Roberts said his job as the Supreme Court Chief Justice would be to call “balls and strikes” as objectively as possible. But when he rewrote the government’s argument to rule Obamacare constitutional, I got the impression that his “strike zone” was a bit … shall we say … flexible.
That flexibility was on display again recently, when he sided with the “I don’t know what a woman is” justices, to insist that a gal offended by the sight of a construction project, has standing to use a lawsuit to halt that construction. I’m sure that the Trump ballroom being the construction project at issue, had no bearing on the size of his “strike zone” (snark intended).
A bunch of lawyer/writers are rationalizing his position, saying he’s trying to maintain the court’s credibility, by not letting “The View” wing of the court, embarrass the entire Supreme Court by writing one of their typical incoherent rants. So instead, he voted with the minority, so he could write a somewhat more rational loosing opinion.
I was prepared to buy that argument, until I saw what Chief Justice Roberts actually wrote. He didn’t just attempt to find an excuse for “aesthetic offense” being a basis for “standing.” He also painted himself into an ethical corner.
This whole case started when Alison K. Hoagland, an architectural historian and board member of the National Trust for Historic Preservation, filed a lawsuit to stop construction of the White House ballroom. Apparently, Ms. Hoagland occasionally walks past the construction site and finds it aesthetically offensive.
District Court Judge Richard Leon thought that “aesthetically offensive” argument sounded swell and issued an order stopping the construction – leaving a giant, apparently less offensive hole in the ground. Fearing a precedent which would stop construction projects all over the country, the Supreme Court intervened. I’ll bet they suspected that someone would find Gavin Newsom’s “train to nowhere” aesthetically offensive too.
As expected, the decision was 5-4 to allow the construction to continue. The rational Justices found that “aesthetic offense” was not actual harm, and therefore Hoagland didn’t have standing to sue. Justices Brown Jackson, Keagan, Sotomayor, and Chief Justice Roberts dissented. But it’s what Roberts wrote in the dissent that got my attention.
Remember that the question before the Supreme Court was only of “standing.” They were not asked about, nor did they rule on the legality of the ballroom construction. They were only asked if Hoagland had a right to redress due to harm from the construction. They ruled that she did not. The implication of their ruling was that only Congress had “standing” to sue, and it wasn’t … yet.
But John Roberts didn’t limit his dissent to “standing.” He wrote that the ongoing construction “is likely illegal.” Three words which are going to come back to haunt him.
The American justice system uses conflict to expose facts, which are then tested by a process which is intended to lead to unbiased resolution.
Defense attorneys are biased for acquittal. Their job is to ensure that all facts supporting an acquittal are presented at court.
Prosecuting attorneys are biased for conviction. Their job is to ensure that all facts supporting a conviction are presented at court.
Jurors are intended to be unbiased. Their job is to weigh the evidence in a fair and impartial fashion. They undergo an extensive voir dire process to ensure that biases are unlikely to affect their deliberations.
Judges are also intended to be unbiased. Their job is to ensure that the process followed by everyone is fair, so that jurors are not inappropriately influenced. When a judge has publicly taken a position on a case prior to its arrival in his courtroom, he is expected to recuse himself. And that is the trap which Chief Justice Roberts set, and then stepped in.
Hoagland may not have standing to stop the ballroom construction, but Congress probably does. What do you suppose will happen if the Dems retake either chamber of Congress in the midterm election? Some of them have already promised to dynamite the ballroom and sell the pieces as souvenirs if elected. I’d say the odds of them suing to stop the construction are about 99.999 percent . And then the legality of the construction will be tested — as will John Roberts’ integrity. It’s those three little words: “is likely illegal.” They are a public statement of an opinion on a case likely to come before him in the future – a decision reached without hearing the evidence first. Will he recuse himself?
Will the Chief Justice remove himself from a future ballroom case, proving that his rulings are merely muddled, but not dishonest. Or will he not recuse himself, showing that he finds a jurist who pre-judges a case is a-okay, as long as the jurist is himself. Is Chief Justice John Roberts a judge who follows the law and the evidence to a conclusion, or a judge who cherry-picks the law and evidence to arrive at his opinion? I think we’re going to find out in the coming months.
Author Bio: John Green is a political refugee from Minnesota, now on strike in Galt’s Gulch – which the locals call Idaho. He is a retired engineer who spent much of his career applying engineering principles to organizational development (yes, really). He has written for The American Spectator, Convention of States Action, and American Free News Network. He can be reached at greenjeg@gmail.com.
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