- - Wednesday, October 9, 2019

The Supreme Court of the United States kicks off a new session this week, and there are no shortage of high profile issues under consideration on their docket, including abortion, gun control and gay/transgender issues.

Many news outlets lead their Supreme Court reporting with a comment that the current court is the most conservative in decades, perhaps even in history. The facts don’t necessarily support that claim, but the general perception of the right-leaning court might help explain the outrageous tactics employed by liberals during the Brett Kavanaugh confirmation hearings before the Senate last year.

Brett Kavanaugh grew up in a wholesome family environment. He was captain of his high school basketball team. He graduated from Yale University. He served as an intern on the U.S. Court of Appeals for the Third Circuit. He earned a one-year fellowship with the Solicitor General of the United States. He clerked for Supreme Court Justice Anthony Kennedy.

Brett Kavanaugh was chosen by President George W. Bush to serve on the U.S. Court of Appeals for the D.C. circuit. As a federal jurist, 25 of Justice Kavanaugh’s 48 law clerks have been women, and 13 have been people of color. The justice has been active in his church for many years, both as a lector and as a volunteer feeding the homeless.

The average American knows none of the above. Instead they know Justice Kavanaugh as the guy that Julie Swetnick claimed was part of a group of boys that spiked punch and gang-raped girls every week at high school parties. The claims were later dismissed as false. They know that a Rhode Island man by the name of Jeffrey Catalan submitted a claim to Sen. Sheldon Whitehouse that Justice Kavanaugh had raped a woman on a boat. Mr. Catalan later admitted he made the story up. Judy Munri-Leighton, a left-leaning activist from Kentucky, emailed the Senate that she had been raped by Justice Kavanaugh. Later, she admitted the story was untrue and that she had never met the man. In an effort to stop the perceived conservative from attaining a seat on the nation’s top court, people were willing to say or do anything.

What could be worse than attacking a man’s credibility with outright lies? What could be worse than twisting, distorting or completely fabricating stories in an effort to sully someone’s reputation beyond repair?

There actually is one scenario that is much worse.

We’ve all done things in life that we don’t necessarily want broadcast to the world. Most of us learn from our errors and don’t repeat them, but in an era where “Saturday Night Live” cast members can be fired because of offensive tweets they sent years ago in ill-fated attempts at humor, the bar for a Supreme Court justice may be almost impossibly high.

If a senator, staffer, activist or reporter stumbles upon an embarrassing quote from your high school yearbook, a crazy picture with your college pals or a joke you told when you were sixteen that is now considered culturally offensive, your aspirations to serve on the Supreme Court could be sunk. Unless something worse happens.

What if during the course of a Supreme Court nominee’s Senate confirmation hearings someone in power, perhaps a senator or an intelligence officer, were to learn details of something particularly embarrassing about the nominee. Something that would humiliate the person forever. Something that might cost him or her not only a seat on the Supreme Court, but might cause him to lose his or her family? What if the individual who learned of this information did not bring it up during the confirmation hearings but instead let the nomination continue to fruition unabated?

What is so terrifying about that? The scary part is that rather than derail a nomination, the person in possession of this information could theoretically control one vote on the Supreme Court. About 20 percent of Supreme Court cases are decided on a 5-4 vote, so if someone could control even a single vote, that person could literally change the course of history.

On July 19, 2005, President Bush nominated John Roberts to the U.S. Supreme Court to fill a vacancy created by the retirement of Justice Sandra Day O’Connor. Justice Roberts was the first Supreme Court nominee since 1994. Chief Justice William H. Rehnquist died on Sept. 3, 2005, while Justice Roberts’ confirmation was still pending before the Senate. As a result Mr. Bush withdrew John Roberts’ nomination as O’Connor’s successor and announced John Roberts’ new nomination to the position of chief justice and asked the Senate to fast-track John Roberts’ confirmation hearings to fill the vacancy by the beginning of the Supreme Court’s session in early October.

It was widely assumed Justice Roberts would be a reliable conservative vote on the court. His history included clerking for Justice William Rehnquist as a young man and working for the Reagan administration. In 2016, Forbes would rank the Chief Justice 50th among the World’s Most Powerful People. No one disputes the importance of the person in the position.

On June 28, 2012, Justice Roberts provided the majority opinion in National Federation of Independent Business v. Sebelius. The decision upheld the Patient Protection and Affordable Care Act by a 5–4 vote, crushing the hopes of conservatives everywhere that Obamacare would be rendered moot because it was not constitutional.

Considering his track record, Justice Roberts’ vote flummoxed many Supreme Court watchers.

On any Friday after justices hear oral arguments on cases, behind closed doors, they traditionally poll the members of the court to see where each justice stands. The chief justice then assigns research and opinion writing duties to a justice among the majority. It is widely believed that after hearing arguments on Obamacare, Justice Roberts was part of a 5-4 majority that initially believed the case was unconstitutional and assigned himself opinion-writing duties but that he later changed his vote for reasons unknown. Did Justice Roberts change his vote? If so, why? Who … or what, influenced his decision?

In 2013, Justice Roberts wrote the 5-4 majority opinion that the appellants seeking to uphold Proposition 8 in California did not have standing and the lower courts’ rulings were allowed to stand and same-sex marriages officially became the norm in California. Conversely, Justice Roberts dissented in United States v. Windsor in which the 5-4 majority ruled that key parts of the Defense of Marriage Act were unconstitutional. The case allowed the federal government to recognize same-sex marriages. He also was in the minority in the Obergefell v. Hodges case, again 5-4, that same-sex couples had a right to marry. Thus Roberts voted three times on gay marriage issues.

Where his vote was needed, Justice Roberts was in the 5-4 majority supporting gay marriage. In those cases where 5 votes existed without him, he voted against. At best it is curious. Is it really so far-fetched in today’s brutal world of politics that someone with leverage influenced the chief justice’s decision-making on select cases?

In December 2018, Justices Roberts and Brett Kavanaugh joined the court’s four liberal justices in a denial for writ of certiorari, declining to hear a case brought by the states of Louisiana and Kansas to deny Medicaid funding to Planned Parenthood. Because the Supreme Court declined to hear the case, the lower court rulings in favor of Planned Parenthood still stand.

Fast forward to February 2019 and Justice Roberts sided with the court’s liberal wing, again in a 5–4 decision, granting a stay to temporarily block a Louisiana abortion restriction.

Justice Roberts’ votes on these items were particularly curious because as a lawyer for the Reagan administration, he wrote legal memos defending a variety of administration policies on abortion and as a lawyer in the George H.W. Bush administration, Justice Roberts signed a legal brief urging the court to overturn Roe v. Wade. His deciding vote contradicted his lifetime of work. Why?

When one looks at Justice Roberts’ body of work, a complete picture of his votes on the Supreme Court, it would be categorized by most constitutional scholars as leaning to the right. When one looks specifically at touchstone liberal issues like abortion, gay rights and Obamacare, however, his votes veer noticeably and undeniably left. Is it possible that someone is, and please excuse the pun, judiciously exercising control over the chief justice on the high-profile, left-wing issues? What better way to have a stealth impact than to let Justice Roberts vote as he chooses, except in the most important of causes? In a more genteel era the notion would be dismissed out of hand. In the current rough and tumble world of Washington, it isn’t far fetched at all.

What Justice Kavanaugh endured was brutal and shameful. Using embarrassing details of one’s life or, worse yet, manufacturing false ones, is unforgivable. Yet, it is not the worst thing that could happen. Using compromising information to pull the strings of a Supreme Court Justice and control major elements of culture and society is far worse.

Surely worse for the justice, but also far worse for you, me and every other American depending on the judicial system to work in the best interest of the public at large.

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