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Opinion John Yoo: Supreme Court swing vote – What's behind John Roberts' legal gymnastics?

00:05  30 june  2020
00:05  30 june  2020 Source:   foxnews.com

Harmeet Dhillon: Supreme Court's Espinoza ruling – religious freedom, school choice win. Here's how

  Harmeet Dhillon: Supreme Court's Espinoza ruling – religious freedom, school choice win. Here's how Tuesday the Supreme Court slapped down a state law that denied state-sponsored scholarships to faith-based schools on the basis of their religious affiliation.In Espinoza v. Montana Department of Revenue, the Supreme Court slapped down a state law that denied state-sponsored scholarships to faith-based schools on the basis of their religious affiliation.

Chief Justice John Roberts agreed with four liberal justices that the state law imposed a “substantial burden” on a woman’ s right to an abortion. June Medical Services v. Russo displays Roberts in fine form as a legal gymnast . John Yoo : Supreme Court ' s LGBTQ ruling – a look at the big picture.

John Roberts . The chief justice has voted with conservatives on landmark rulings on voting rights, campaign finance, public unions and partial-birth Roberts sided with the court ’ s liberal wing once again in the most recent term, in a case protecting the privacy rights of cellphone users in which the

By a 5-4 vote, a fractured Supreme Court Monday struck down Louisiana’s effort to regulate abortion by requiring abortion doctors to have admitting privileges at local hospitals. Chief Justice John Roberts agreed with four liberal justices that the state law imposed a “substantial burden” on a woman’s right to an abortion.

a large building: Fox News chief legal correspondent Shannon Bream breaks down the ruling on 'America's Newsroom.' © Provided by FOX News Fox News chief legal correspondent Shannon Bream breaks down the ruling on 'America's Newsroom.'

While the decision guarantees that abortion will continue to roil our politics, it may prove an even more important signal of Roberts’ determination to foil President Trump’s agenda to remake the federal courts.

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The Supreme Court ' s 5-4 decision refusing to extend a deadline for absentee ballots in Tuesday' s Wisconsin elections reflects Chief Justice John Roberts ' cramped view of voting rights in America, a long-held position that has often favored Republican interests.

Chief Justice John G . Roberts Jr. sided with the liberal wing of the court on Thursday to uphold an abortion precedent.Credit Doug Mills/The New York Times.

June Medical Services v. Russo displays Roberts in fine form as a legal gymnast. Four years ago, in Whole Women’s Health v. Hellerstedt, the chief justice had voted to uphold an identical law from Texas. He lost that case, however, because Justice Anthony Kennedy joined with the court’s liberal wing – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – to find that the burdens on abortion access outweighed the purported benefits of the regulation.

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The Supreme Court's competing visions of conservatism

  The Supreme Court's competing visions of conservatism With Monday's Supreme Court's decision in June Medical Services L.L.C v. Russo, Americans are learning that there are at least two kinds of conservatism in the United States — and that, at least on some issues, Chief Justice John Roberts affirms one kind while his fellow Republican appointees to the high court affirm the other. Just four years ago, shortly after the death of conservative stalwart Antonin Scalia, a 5-3 majority of the Supreme Court voted in Whole Woman's Health v. Hellerstedt to strike down a Texas law that required doctors working in abortion clinics to maintain admitting privileges at nearby hospitals.

While chief justice John Roberts ruled with the liberal judges this morning and struck down a restrictive abortion law, Roberts made it clear in his opinion for the court that his decision is based on his respecting a previous supreme court decision.

Supreme Court Chief Justice John Roberts continues to position himself as the high court ’ s swing vote -- siding with both his conservative and liberal It was Roberts who wrote that the individual mandate was legal because having a monetary penalty attached allowed it to fall under Congress’

With President Trump’s 2018 appointment of Brett Kavanaugh to replace the retiring Kennedy, conservatives could have justifiably expected the court to finally discard the substantial burden test, first introduced in 1992 in Planned Parenthood v. Casey.

Trump’s appointment of Justice Neil Gorsuch in 2017 would not have had that effect, because he replaced Justice Antonin Scalia, a fierce foe of Roe. But Trump’s supporters, many of whom voted for him in order to shift the court in a more conservative direction, would have believed that Kavanaugh’s appointment would lead to Roe’s end.

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Those hopes came to a crashing halt Monday. While he refused to join the liberal justices’ opinion in Russo, Roberts voted to strike down the Louisiana law anyway in the interests of adhering to past precedent.

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Decisions from the US Supreme Court are being released this morning. The court ’ s first decision this morning involves foreign groups that receive US monetary aid. Myrlie Evers began to weep when she heard the Mississippi Legislature vote to remove the Confederate battle emblem from the state flag.

While chief justice John Roberts ruled with the liberal judges this morning and struck down a restrictive abortion law, Roberts made it clear in his opinion for the court that his decision is based on his respecting a previous supreme court decision.

“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote in his concurrence. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”

Roberts still claimed that he remained true to his legal principle. He continues to “believe that the [Texas] case was wrongly decided.” But he said the question was whether to “adhere to it in the present case.”

Conservatives on the court legitimately questioned Roberts’ commitment to the Constitution. In a powerful dissent, Justice Clarence Thomas declared that the court’s claim of stare decisis “does not comport with our judicial duty under Article III, which requires us to faithfully interpret the Constitution.”

Instead, he wrote, “when our prior decisions clearly conflict with the text of the Constitution, we are required to privilege the text over our own precedents.” Because  Roe and Casey are based on a “demonstrably erroneous interpretation of the Constitution,” Thomas concluded, “we should not apply them here.”

Supreme Court Rejects Louisiana Abortion Restrictions

  Supreme Court Rejects Louisiana Abortion Restrictions In the end, Chief Justice Roberts couldn’t go along with a quick reversal of a recent precedent.June Medical Services v. Russo was universally regarded as the best opportunity anti-abortion advocates had to give a green light to states that sought to shut down clinics via Targeted Regulation of Abortion Providers (TRAP) laws purported (disingenuously) to protect the health of women seeking abortions. What stood directly in the way, however, was the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, in which it struck down a virtually identical Texas law. But the Court was configured differently four years ago.

As the court ' s swing vote , Kennedy is what political scientists call the “median justice." Plot out the ideology of the court ' s nine members, and you'll find Kennedy smack in the middle with four conservatives on one side and four liberals on the Here' s what that looks like, going back to 1937.

A Supreme Court with John Roberts as the swing vote on abortion is one that should be ready and willing to uphold ever-increasing restrictions on Roberts has been very guarded in the public record in his statements about abortion. During his Senate hearings, his stock answer was that Roe v. Wade

It is the court's job to uphold the Constitution, not its old cases. If its precedents conflict with the Constitution, it must reverse them, just as it refuses to enforce executive orders or statutes that violate the Constitution.

Why would Roberts vote to strike down a law that he believed, only four years ago, was constitutional? His claim to stare decisis proves unconvincing. If Roberts were right, the court should never have decided Brown v. Board of Education, which declared segregation unconstitutional, since it overruled Plessy v. Ferguson. Roberts himself voted just last year to overrule precedents related to the Takings Clause and two years ago against mandatory union dues.

Politics may well explain Roberts’ rush to the pro-abortion side of the court. He has now frustrated President Trump’s efforts to remake the federal courts.

Amid wave of cultural change, Trump tries to stir a backlash

  Amid wave of cultural change, Trump tries to stir a backlash WASHINGTON (AP) — It was June 2015, and Democrats felt the nation’s political and cultural winds blowing their way. The Supreme Court ruled in President Barack Obama’s favor on landmark gay marriage and health care cases. The White House was awash in rainbow light, a symbol of a liberal cultural takeover that seemed unstoppable. The following year, Donald Trump was elected president, propelled by a revolt of voters who weren’t on board. As heThe following year, Donald Trump was elected president, propelled by a revolt of voters who weren’t on board.

Consider his votes just this term. Roberts has stopped the effort to overrule Roe and Casey Monday. Last week, in Regents of California, he provided the fifth vote to block Trump’s order ending the Obama administration’s Deferred Action for Children and Deferred Action for Parents programs – even though the courts had held the orders unconstitutional. Two weeks ago, in Bostock v. Clayton County, he voted to extend federal anti-discrimination protections in the 1964 Civil Rights Act to gay and transgender employees.

The DACA decision and regulatory rule of law

  The DACA decision and regulatory rule of law The Supreme Court's rejection of the Trump administration's brazen efforts to end DACA will become central to dozens of pending battles over other Trump regulatory rollbacks. © Getty Images The DACA decision and regulatory rule of law In rolling back DACA, the Trump administration offered little justification, with the initial explanation a vague assertion that the Obama administration lacked the legal authority for the DACA policy. Pressed by lower courts, Trump's regulators later offered a few more justifications, but stuck with the earlier action.

Trump has set records in the speed and number of his appointments to the lower courts, and has chosen conservative nominees unmatched by any previous president in their sterling qualifications and intellect. He has appointed two Supreme Court justices who have generally voted with stalwart conservatives Thomas and Samuel Alito. But it has come to naught with Roberts shifting into the middle, swing position once occupied by Justice Kennedy.

Roberts’ supporters will argue that the chief justice is keeping the court out of politics during an election year. In today’s decision on abortion, he has planted the court in a very popular decision; polls suggest that Americans support a right to abortion but with reasonable limits. He has achieved the same moderation with this month’s immigration and gay rights cases, whose outcomes match the preferences of many.

Roberts may tell himself that by restraining the conservatives on the court and moderating its course, he has removed the Supreme Court as a target for a possible Biden presidency.

But Roberts’ mistake is to play politics at all. If he seeks moderation, he will respond to the political environment, which will only encourage more political efforts to pressure him and the court.

The chief justice tried something like this back in 2012, when states challenged ObamaCare as exceeding the powers of the federal government. After the oral argument, Democratic elected politicians launched unprecedented political attacks on Roberts and the court. According to reports, Roberts flipped his vote to uphold ObamaCare, and in so doing upheld a popular program, but at the price of diluting the Constitution’s careful limits on the balance between Washington, D.C., and the states.

Today’s legal gymnastics may have a similar purpose behind them. But they are a loser’s game.

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By trying to keep the court in a low-profile, moderate position, Roberts forgets that advancing popular programs remains the job of the president and Congress, whom the people elect for that purpose. The court’s role should remain that of enforcing the Constitution against popular wishes – otherwise, we could dispense with a Constitution and just let elections decide all.

By revealing his political concerns, Roberts will only further spur the politicization of the court, the political campaigns to influence the justices, and the circus that has become our confirmation process. By trying to protect the court in the short term, Roberts may well harm it in the long.

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Supreme Court Strikes Down Louisiana Abortion Restrictions .
The Supreme Court on Monday struck down a Louisiana law that could have left the state with a single abortion clinic. © Michael A. Mccoy/Getty Images Anti-abortion demonstrators protesting in front of the Supreme Court in Washington last week. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. voting with the court’s four-member liberal wing but not adopting its reasoning. The chief justice said respect for precedent compelled him to vote with the majority. require(["medianetNativeAdOnArticle"], function (medianetNativeAdOnArticle) { medianetNativeAdOnArticle.

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