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President Barack Obama talks with Justice Elena Kagan and Chief Justice John Roberts after Kagan's Investiture Ceremony at the Supreme Court, Oct. 1, 2010. (Official White House Photo by Pete Souza) This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

Roberts The Mind Reader Joins Liberal Justices On The Census

The Supreme Court’s 5-to-4 ruling on Department of Commerce v. New York is being characterized as nothing more serious than a temporary setback regarding President Trump’s wish to reinstate a citizenship question in the 2020 U.S. Census; the administration is expected to whip up a new rationale that the high court won’t consider “contrived” and get the question in.

Unfortunately it is far worse than that, and Chief Justice John Roberts is giving further sign that he is yet another unpleasant surprise in GOP appointments to the highest level of the Judicial Branch, following in the footsteps of David Souter (Bush 41), Anthony Kennedy and Sandra Day O’Connor (Reagan), and John Paul Stevens (Ford).

“The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions,” Justice Clarence Thomas warns in his dissent, joined by Justices Gorsuch and Kavanaugh. “And, if taken seriously as a rule of decision, this holding would transform administrative law … the Court has opened a Pandora’s box,” Thomas declared.

Motivated by politics and ideology, lawyers would challenge all sorts of Executive Branch decisions “with accusations of pretext, deceit, and illicit motives” leading to “an endless morass of discovery and policy disputes,” Thomas cautions. “Now that the Court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them. Moreover, even if the effort to invalidate the action is ultimately unsuccessful, the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction.”

The establishment media, of course, would dutifully report such endless haranguing as scandals.

“For the first time ever,” Thomas writes, “the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.”

All this because Roberts and the four liberal justices think the Commerce Department’s argument that asking about citizenship status would help enforce the Voting Rights Act “seems to have been contrived” – even though Secretary of Commerce Wilbur Ross may have “merely had additional, unstated reasons for reinstating the citizenship question,” Thomas points out. “Rather, it holds that the Secretary’s stated rationale did not factor at all into his decision.”

Census Asked About Citizenship Going Back To 1820

With the high court’s summer recess beckoning, Roberts might want to offer these remarkable fortune-telling talents of his to some seaside amusement facility. We have actually reached the point where the Supreme Court is reversing administrative decision-making explicitly allowed by Congress because a majority of the justices have divined, soothsayer-like, that a cabinet secretary or agency head was thinking the wrong thoughts.

“Unable to identify any legal problem with the Secretary’s reasoning,” as Thomas puts it, “the Court imputes one by concluding that he must not be telling the truth.”

The legality of a citizenship question is not in question. As Thomas writes, alluding to Justice Alito’s separate dissent, “the Secretary’s decision plainly falls within the scope of the Secretary’s constitutional authority, does not implicate any statutory prohibition, and is among the ‘inquiries’ and ‘content[s]’ of the census that the Secretary is expressly directed to ‘determine’ for himself.”

And for crying out loud, the citizenship question was part of the U.S. Census until Obama! As Thomas notes, “Prior census questionnaires have included questions ranging from sex, age, and race to commute, education, and radio ownership. And between 1820 and 2010, every decennial census questionnaire but one asked some segment of the population a question related to citizenship. The 2010 census was the first since 1840 that did not include any such question.”

Justice Samuel Alito in his dissent points out that even “The United Nations recommends that a census inquire about citizenship,” the UN being far from an enemy of chaotic migration across national borders.

Alito even quotes Thomas Jefferson, who in 1800 “signed a letter to Congress asking for the inclusion on the census of questions” relating to, in Jefferson’s words, “the respective numbers of native citizens, citizens of foreign birth, and of aliens … for the purpose … of more exactly distinguishing the increase of population by birth and immigration.”

What’s more, “this Court has never before encountered a direct challenge to a census question,” Alito points out. “And litigation in the lower courts about the census is sparse and generally of relatively recent vintage.”

Federal Courts Mimicking Congressional Committees

Echoing Thomas, Alito warns that the Supreme Court has now “set a dangerous precedent, both with regard to the census itself and with regard to judicial review of all other executive agency actions … If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment …”

Federal courts would become extensions of aggressive inquiry of cabinet departments and agencies by the opposition party in congressional committees.

“To put the point bluntly,” Alito writes, “the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.” For one thing, 535 other noses are stuck into it already: “The Secretary is also accountable to Congress with respect to the administration of the census since he has that power only because Congress has found it appropriate to entrust it to him.”

In his majority ruling, Chief Justice Roberts claims that the law “calls for an explanation for agency action. What was provided here was more of a distraction.” In truth, what was provided was an explanation Roberts and the four liberals found unsavory.

We may not yet have reached the stage where Roberts is basing his vote on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as O’Connor, Kennedy and Souter put it in their 1992 Casey jointly-written opinion upholding Roe v. Wade. But twisting logic into a pretzel he disgracefully joined with the liberals to save ObamaCare in 2012. Then yesterday he concurred with part of Justice Elena Kagan’s majority opinion to continue to allow federal agencies to interpret their own regulations.

Whether what is going on is the kind of deal-making across ideological lines that was turned into a shrewd art by the late liberal Justice William Brennan, or some sort of personal repugnance toward President Trump, what Roberts is doing with his crystal ball can’t be described accurately as judging.

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Thomas McArdle

Tom McArdle @MacArdghail, longtime Senior Writer for Investor's Business Daily, was a White House Speechwriter for President George W. Bush, National Political Reporter for Washington political columnists Rowland Evans and Robert Novak, Managing Editor of Human Events, and has worked as a writer for CNN and the Catholic League for Religious and Civil Rights. His work has appeared in National Review, the American Spectator, The Hill, the Washington Examiner, Newsmax, and the National Catholic Register. He has appeared on Fox News and numerous talk radio programs. He is a graduate of Trinity College, Dublin, M. Stanton Evans' National Journalism Center in Washington, Cardinal Hayes High School in the Bronx, and at 17 was one of Curtis Sliwa's original "Magnificent 13" Guardian Angels.

17 comments

  • You can make excuses for Roberts, however, the bottom line is that he is either a radical
    in sheep’s clothing or has been compromised (blackmailed) in some way. I hope President Trump has an opportunity to appoint another conservative (one who adheres to the rule of
    law and the constitution) justice so we can end these whacko shenanigans once and for all.

  • Roberts is a swamp rat, which is what made him confirmable in the first place. He will never, ever make a ruling that could get him disinvited from a Washington Christmas party. His judicial philosophy is really no more complicated than that.

  • His 180 deg. turn from Conservatism to Liberalism could be explained by how he adopted his Irish children. Some say through a South American illegal child trafficking network.

  • I won’t be doing any census if it doesn’t have the question in it. Throwing it in the trash.

  • Include it ANYWAY, with a dozen new and completely reasonable rationales.

  • Souter redux. That’s the only explanation. Vetting of this man before appointment apparently was decidedly lacking. Just like a hiring decision in the business world you are always getting a pig in a poke. What looks great on the surface turns out to be nothing of the kind. Even Presidents and their staff of vetters can make this mistake. Unfortunately it then turns into a mistake for the country.

    • I was working in the White House when Roberts was vetted. I don’t believe there were any red flags that, say, the Federalist Society would have been worried about. But I know President Bush was impressed that he was captain of his high school football team. To me, that’s the same kind of thinking that says McCain & Dole would have made good Presidents because they were war heroes. McCain would have been a dreadful President and Dole would have been somewhere between Reagan & Nixon (a large spectrum, and I don’t know where he would have fallen). Roberts, if you recall, blew them away at his confirmation hearings. Then-Senate Judiciary Committee Chairman Biden said it was the best performance by a Supreme Court nominee ever. Trump, for all his flaws, is proving to be better at judicial appointments than any of his predecessors, including Reagan. Truth is stranger than fiction!

  • Justice Roberts has not written one major legal opinion which entails a modicum of logical legal reasoning. Would we expect anything more this time?

  • Knowing that Chief Justice Roberts suffers from some sort of affliction I thought he went off his meds causing his awful Obamacare decision. But now I believe it is worse than that with his irrational ruling on the census question. The beneficiary of his incoherent decisions is the Democratic Party. Start there. Next, he’ll likely rule that photo IDs to vote are unconstitutional.

  • You almost never see a Democrat appointee switch gears in mid-stream. There is some serious question about who is recommending and vetting these judges.

  • I was surprised Obama left office as easily has he did.

    I should have known his bosses knew he could do more damage out of office. They made sure his loyal soldiers remained in positions of power in Trumps admin.

    Roberts warmed America when he told us Obama is a lair. Roberts knew most of America would be watching, it was the state of the union.

    We should have reacted when Roberts went out of his way and rewrote the aca so it could be considered constitutional. Roberts knew he was pulling a 180 and his life would never be the same.

    What could make a Supreme Court Judge destroy his reputation, be willing to be the villain in America’s history?

    Up is down and down is up.

    For 6 years Obama and his admin sold access to the NSA data base, would unmask anyone and ignore illegal searches all for the right price. His bosses knew, once again, Obama would profit all the information and not have to do any of the work. Plus, he was so many steps away, any accuser would simply look stupid trying to play Kevin Beacon but with at least 30 degrees.

    Go look back starting 2010 how many 180’s started to happen? When did the media start to flat out lie to its readers. It got so bad it got its own nick name, fake news. What made the media and its owners destroy the one thing that separates opinion from news, the truth?

    Obama spent 6 years collecting and spying on anyone his bosses deemed a threat presently or possibly to their long term plan of destroying America.

    Why did a judge with a perfect record, who was liked by all, when Obama was in charge, have to defend false rape accusations after all 3 witnesses said it never happened? Think about it, before Obama the media, congress, senate, would never allowed a good man to be destroyed based on lies that were proven lies.

    Trump and we the people are going to have to ask the same questions as our framers did: are you willing to lose everything, including the lives of people you love, to defend America? This decision will be made long before any side starts a war.

    The Left has taken away every conservatives freedom of speech and their liberty. Be honest, anyone with a grade school, middle, high school kid has been forced to be careful when it comes to telling your kids you support Trump or your conservative views and beliefs. Conservatives now risk getting their children hurt both physically and mentally. Are you willing to have your kids chances of going to college tosses out be a Leftist teacher failing them just because they are conservative?

    We have all let them take it, shame on us, but it isn’t even close to over. How many rights,
    How much freedom, are
    You willing to lose before you are ready to lose it all?

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