Editor’s note: This has been excerpted with permission from the author. To read the entire article, click here.

In March Chief Justice John Roberts got way out over his skis when he lectured President Donald Trump against calling for the impeachment of federal judges. Roberts sounded tone-deaf given the problems in his own house.

Roberts effectively is the CEO of the American judicial branch. During Roberts’ 20 years as chief justice, Americans’ confidence in the judiciary has plummeted from nearly 60% to 35% last year. If Roberts were the CEO in a private-sector industry where there was any accountability, he would have been fired years ago. Credibility is all that a court has, and if you lose it, you’re toast.

Under Roberts, the notion of judicial independence has disappeared. These days, the media feel the need to say which president appointed which judge. The implication is that a judge appointed by Clinton, Obama or Biden will reach a different opinion, on the same set of facts, than a judge appointed by Bush or Trump. Roberts himself has been the subject of numerous articles (among other places, see here, here and here) noting that he often seems less an interpreter of the law than a majority whip who counts votes and gauges the political winds.

There’s perhaps no better example of the politicization of the judiciary than the case of Sarah Palin v. New York Times. Anyone who followed the two trials and read the two decisions (here and here) by the Second Circuit Court of Appeals could be excused for thinking that the trial and appellate courts were talking about two completely different cases.

As we know by now, a jury on April 22 quickly dismissed Palin’s claim in the retrial even though the appeals court had made clear in its two decisions that Palin has a compelling case. That wasn’t enough to overcome a hostile judge and a New York jury.

Naturally, the media are thrilled that their right to lie – oops, check that, their right to make “honest mistakes,” in the words of the Times’ lawyer – remains intact. Under the 1964 Supreme Court precedent in New York Times vs. Sullivan, it’s virtually impossible for public figures to bring defamation claims. The legacy media strenuously defend this standard, unless the media company in question is Fox News.

Let’s be clear: What the New York Times did to Palin was not an “honest mistake.” Not even close. The Second Circuit has been explicit on that point and likely will be far more receptive to Palin’s arguments on appeal.

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