Chief Justice George W. Bush

George Bush said he wanted Supreme Court justices like Thomas and Scalia. It would appear now that he got a Chief Justice just like himself -- a sloganeering promise-breaker, who campaigned for himself on a puffy cloud of unity, only to take his opportunistic victory and use it to further an extremist right-wing agenda by playing loose with facts and adhering to an inconsistent application of the law.

"[T]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race"

We might as well have Frank Luntz as Chief Justice. When I read this line, my blood began to boil. What a perfect example of a GOP bumper-sticker talking point. As Deborah Hellman writes, it's a "seeming truism" that appears on the surface to be perfectly logical, but isn't, and requires several hundred words to correctly refute. It's a Ken Mehlman Meet The Press Special, and it comes courtesy of the highest judge in the land. Clearly, telling kids that they cannot attend a school because of their race is a different kind of discrimination than identifying kids who have been discriminated against in that manner and providing them with opportunities they were denied. I suppose Roberts would stand in a scalding hot shower getting his skin burned off because the way to deal with an improper water temperature is to stop regulating the faucet.

It's no different than the president, who campaigned on a platform of Compassionate Conservatism and has been neither. Roberts pretended that he would respect precedent, but his court has overturned or mortally wounded precedents old and extremely young, proving that this court has no respect for where this country is now or how it got here. The only thing different from a few years ago is the personalities on the court, proving that the ideologies they carried with them are not just influencing their decisions, they are the sole mechanism behind the regression of the court.

Roberts had convinced even some of his biggest skeptics that he would work to build large consensus opinions, moving the court in a conservative direction, but only incrementally. Like our "uniter, not divider" president, that turned out to be hogwash. Just like the partisan 5-4 vote that put Bush in office, the slew of rotten decisions this court has vomited on the nation this term are tattooed with a 5-4 branding. Instead of reflecting the diversity of viewpoints in the country, Bush has sought to please only the narrowest and most extreme band of his base, the same segment of the nation cheering the court's rulings this week.

The radical U-turn the court has taken in the last term is the result of a GOP majority in both houses of Congress and a Republican president with "political capital." That temporary situation is toast. The GOP is the minority party in Congress and the president, it would seem, couldn't be more unpopular. Yet, the Supreme Court will set, for a generation or more, an agenda representing the most fervent views of that publicly-rejected government.

Like the president, Roberts can't even get his facts straight.

It may be useful to look at the facts the chief justice so remarkably overlooked or rearranged. In his very first sentence, Roberts wrongly said: "At a school-sanctioned and school-supervised event, a high school principal saw ..."

How's that again? At this public event, the high school sanctioned nothing and supervised very little. The parade was sponsored by the Coca-Cola bottling plant in Juneau and by several other private companies and private citizens. The school turned out a small band, but that was the beginning and end of the school's involvement.

The chief justice would not let it go. Eleven times he got it wrong. He said the torch-bearing parade was like a "class trip." This was palpable nonsense -- high-octane nonsense, but nonsense nonetheless. This was never a school function. The parade never touched school property.

One more point of fact: The chief justice said the Olympic torchbearers were to pass by the school "while school was in session." But this was not so. Not a single class was in session as the torch passed by. The students, including young Joe Frederick, were free to watch the parade, throw snowballs or stay home, as they wished.

Since it's too much to ask that the President of the United States base his decisions on reality, it's not much of a surprise that the Chief Justice is setting the bar so low. But nobody ever seriously considered Bush a brainiac. Roberts, on the other hand, was lauded by everybody with an office in D.C. as the most brilliant lawyer in the universe. Shouldn't this individual be able to discern the most simple facts presented to him? As with Bush, facts that have a "liberal bias" do not factor into his decision-making.

George Bush points to his snowflake-children props to point out how America needs to "err on the side of life." The same president who is responsible for countless deaths in Iraq and who, as governor of Texas, mocked a woman he had executed. It would seem Roberts is content with such a flimsy attachment to consistency, as well, his court issuing a decision defending free speech for the wealthy and powerful, while issuing another denying a student his political speech based solely on the unpopularity of the opinion expressed.

We couldn't have been stuck with a worse president. Predictably (for anyone named Vinny in a bathrobe, at least), we are now stuck with a terrible Supreme Court, created in George W. Bush's own image.

UPDATE: Once again, I got distracted and a finer blogger has scooped me.

Consequences

The Supreme Court is lost. Of course, we we fairly certain of that in November 2004. We knew it for sure after the worthless "Gang of 14" made the loss complete. Today, we can see the results of such a momentous failure.

It's hard for DB to decide which is the worst opinion of the term. The "Bong Hits 4 Jesus" case is clearly the most illogical. Today's decision on school desegregation is the most dispiriting. The McCain-Feingold and faith-based decisions were disappointing, but unsurprising and based, at least, on a consistent application of the law on the part of the majority.

Chief Justice John Roberts (and Justice Alito) both said they respect stare decisis, but that was clearly a distortion. They respect precedent only in the context of what things were like before cases were settled in ways in which they did not appreciate. President Bush said he wanted judges like Clarence Thomas and Antonin Scalia, and he got them.

Thomas, of course, told the Senate that he had never thought about Roe (an unbelievable claim) and then, as a Justice, stated that it was wrongly-decided. Scalia's willingness to violate his own rules in order to reach the decision that pleases him is well-documented.

The Roberts Court is not only failing America; Roberts is failing to meet the expectations he set for himself. Norman Ornstein says it quite well:

He did seem to be someone who would be respectful of stare decisis and would move to change the court in small steps, using a more consensus-driven approach, looking for narrow solutions that could command 9-0 or 8-1 decisions, rather than 5-4 votes. Such narrow decisions ultimately erode the legitimacy of the Supreme Court because they underscore a sense that rulings are not driven by careful adherence to law and precedents but by the political calculus, based on who retires and which president gets to make the replacement.

In his initial service on the court, I was encouraged that Roberts would fit that institution-building mold, working with a like-minded institutionalist on the other side of the philosophical divide, Associate Justice Stephen Breyer. Now, with the decisions this week, I see that I was wrong. We have fallen into a pattern of key decisions that come down 5-4, with Roberts and the more rigid Samuel Alito joining Antonin Scalia, Clarence Thomas and Anthony Kennedy to throw out precedents established only a few years ago, all driven not by changes in the law or objective deliberations over facts, but by the simple fact that Sandra Day O'Connor left the court and was replaced by a more conservative justice.

The good news is that these 5-4 decisions carry as little weight as possible (I know, that's not much silver lining) and Justice Kennedy's opinion actually does a little bit to protect affirmative action. The bad news is that we're stuck with this court for a long time and it could possibly get worse.

Thanks a lot, Joe Lieberman. The next time this blogger hears you talk about being a Freedom Rider, I hope somebody asks you why you helped destroy Brown v. Board of Education.