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And if it weren’t for Hamilton, John Roberts would be making $1500 a year as Chief Justice

By auguste
Tuesday, May 19, 2009 4:49 EDT
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Via TBogg, Jeffrey Toobin describes John Roberts in terms that would surely have struck fear into the hearts of the founding fathers contemplating the judiciary:

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff…

Scurrilous blogger Alexander Hamilton touched on this kind of thing in Federalist 78:

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws…Considerate men, of every description, ought to prize whatever will tend to beget or fortify [the] temper [of integrity and moderation] in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

The reliance on the Hamiltonian view of the court system cuts both ways: “Strict constructionists” can talk all they want about their desire, pace the rest of 78, for judges who “have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of [their] judgments”…but they must also accept that the same founding fathers wanted a judiciary which would not, as Toobin describes Roberts, simply rule in the favor of established power structures.

As a lawyer and now as Chief Justice, Roberts has always supported legal doctrines that serve a gatekeeping function. In DaimlerChrysler v. Cuno, a group of taxpayers in Toledo, Ohio, went to court to challenge local tax breaks that were given to the carmaker to expand its operations in the city; the Supreme Court held that the plaintiffs lacked standing. In a broadly worded opinion that relied in part on the Lujan case, Roberts suggested that most state and local activities were off limits to challenge from taxpayers. “Affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury, ” Roberts wrote, “would interpose the federal courts as virtually continuing monitors of the wisdom and soundness of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.” As usual with Roberts’s jurisprudence, the citizen plaintiffs were out of luck.

The Supreme Court as the only barrier between the unwashed rabble and its imperial masters? “[T]he inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.”

 
 
 
 
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