By: Brian Evans
On Wednesday, Chief Justice John Roberts made a rare rebuke of President Trump’s comments about Judge Jon Tiger, who was appointed by President Barack Obama to the bench in San Francisco. Judge Tiger shot down the President’s attempt to secure the border and prevent asylum to those who cross the border illegally, instead of through legal ports of entry, as directed under United States law. Judge Tiger went even further by accusing the President of attempting to rewrite immigration laws. He then added that the President’s action would cause illegal immigrants…
“an increased risk of violence and other harms at the border.”
However, Judge Tiger fails to note how a lack of action by the President would be putting the American people at risk, as more than 500 hardened criminals have already been identified in Tijuana, within the caravan itself. Criminals who would bring drugs, crime, human trafficking, sex trafficking, and potentially murder to the streets of America. Furthermore, under the Constitution of the United States, it is the responsibility of the President of the United States to secure the border and PROTECT OUR CITIZENRY FIRST under the Constitution, not to protect those who are not citizens of the United States in other countries, especially when it puts American citizens and interests in harm’s way.
The temporary restraining order is effective not just in California, but nationwide, and will remain in effect until December 19, when the judge has scheduled another hearing, or further order of the court.
President Trump then referred to Judge Tiger of California as a Obama judge,”which has brought about a rebuke from Chief Justice John Roberts of the United States Supreme Court. Justice Roberts said Wednesday that the U.S. doesn’t have…
“Obama judges or Trump judges, Bush judges or Clinton judges,” and added that an “independent judiciary is something we should all be thankful for.”
Chief Justice John Roberts
However, do we really have a ‘independent judiciary’ today, or has it been morphing into more of an un-elected legislative branch, able to decree its will upon ‘We the People’, and even the President of the United States?
Republican Chuck Grassley defended the President, and even pointed out that…
‘I Don’t Recall Chief Roberts Attacking Obama When He Rebuked Alito During a SOTU’
Senator Chuck Grassley, (R-IA)
Grassley said what we are all thinking–where was Chief Justice Roberts’ rebuke of Obama when he attacked the Supreme Court during a State of the Union speech?
Grassley was referring to the January 2010 State of the Union, when then President Barack Obama criticized the Supreme Court’s decision on campaign finance, and Justice Alito shook his head and said “not true” as Obama chastized the Supreme Court for ruling against him..
Senator Grassley pointed out howChief Justice Roberts rebuked Trump for a comment he made about the judge’s decision on asylum, but remained deafly silent, after Obama attacked the Supreme court in its entirety on national television, during the State of the Union…
The President responded to Chief Justice Roberts by stating…
…..are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking. We need protection and security – these rulings are making our country unsafe! Very dangerous and unwise!
Also, there was Supreme Court Justice Ruth Bader Ginsberg, who took it upon herself to attack then Presidential candidate Donald Trump in 2016, when she said…
“He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.” She went on to say, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”
Supreme Court Justice Ruth Bader Ginsberg
Interestingly, once again the Chief Justice John Roberts chose not to rebuke her actions, and remained silent. Therefore, as he chastizes President Trump and says that there are not “Obama judges or Trump judges, Bush judges or Clinton judges,” and added that an “independent judiciary is something we should all be thankful for,” justice Roberts would do well to consider his own words. After all, Ginsbergs words were far from independent.
President Ronald Reagan defined the true role of an independent judiciary, when he said…
The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.
President Ronald Reagan
However, since the late 1930s, the courts have gradually abandoned their proper and essential role under the Constitution to police the structural limits on government and neutrally interpret the laws and constitutional provisions without personal bias.
In recent years, judges have flat-out refused to base rulings on the constitution, and instead sought to impose their own personal preferences and ideologies, rather than on the text of the law, or more importantly, the constitution itself. Normally, the Supreme Court of the United States is supposed to interpret the laws and constitutional provisions, based on their original meaning, and not on ideological or personal beliefs. Then, the lower and state courts are bound by the precedence that are set by the Supreme Court, and on the original meaning of the laws and constitution as well.
Judicial Activism is defined as when…
“judges fail to apply the Constitution or laws impartially according to their original public meaning, regardless of the outcome, or do not follow binding precedent of a higher court and instead decide the case based on personal preference. The proper measure is not whether a judge votes to uphold or strike down a statute in any given case. Adhering to an original understanding of the law is the only way to consistently “minimize or eliminate the judge’s biases.” At times, this means that judges must strike down laws that offend the Constitution.”
Although liberals try to paint judicial activism as unreal, or non-existent, it is quite real and happening more and more, as judges throughout America are using the bench to legislate, rather than police the structural limits on government and neutrally interpret the laws and constitutional provisions without personal bias.
Judge Tiger stated that the President’s forcing immigrants to obey the law, and only be granted asylum if they entered at a legal point of entry would lead to illegal immigrants having…
“an increased risk of violence and other harms at the border.”
However, judges are not supposed to decide on whether or not a law leads to good or bad results, but with whether it violates the Constitution and, if not.
Judicial Activism can take a number of forms, whether or not it involves…
- importing foreign law to interpret the U.S. Constitution
Just one case of ‘Judicial Activism’ that involves the importing foreign law to interpret the United States Constitution involves a Female Genital Mutilation case in Michigan. In the case, U.S. District Judge Bernard Friedman chose to use the barbaric Sharia laws of the Muslim religion to interpret the Constitution, which is designed to protect the very girls whom had their constitutional rights violated. In the case, the judge in Detroit declared America’s female genital mutilation law unconstitutional, thereby dismissing the key charges against two Michigan doctors and six others accused of subjecting at least nine minor girls to the cutting procedure in the nation’s first FGM case. The Detroit Free Press reported…
“The historic case involves minor girls from Michigan, Illinois and Minnesota, including some who cried, screamed and bled during the procedure and one who was given Valium ground in liquid Tylenol to keep her calm, court records show.
The judge’s ruling also dismissed charges against three mothers, including two Minnesota women whom prosecutors said tricked their 7 -year-old daughters into thinking they were coming to metro Detroit for a girls’ weekend, but instead had their genitals cut at a Livonia clinic as part of a religious procedure.”
2. elevating policy considerations above the requirements of law.
With Obamacare, not only did lower courts embrace judicial activism in their decision, but the United States Supreme Court itself validated the mandate within the Affordable Care Act’s (ACA). Therefore, it is judicial activism to the heart of the decision.
In fact, it was Chief Justice Roberts, who employed judicial activism himself, and effectively legislated from the bench, as he held that the mandatory requirement that individual Americans purchase health insurance, or they would be subject to paying a penalty. He said that it is within Congress’s constitutional power to tax, despite President Obama and Congressional Democrats openly professing that the ACA mandate is not a tax. Therefore, by converting Congresses regulation into a tax, Chief Justice Roberts and his fellow four Justices did exactly what he said does not exist…Judicial Activism.
In fact, it is unlikely that without Chief Justice Roberts and his fellow ‘Judicial Activists’, Congress would not have been able to do what the highest court in the land did. They took legislation that could not have gotten past as a mandatory tax on ‘We the People’, or be subject to a fine, or penalty.
In the end, the courts should actively restrain, not actively facilitate, government infringement on liberty, especially at the Supreme Court of the United States.
Under normal circumstances, as an out of control and activist government exceeds its enumerated powers, like with Democrats under Nancy Pelosi, Chuck Schumer, and Barack Obama, it threatens individual liberties, and the courts should have been vigilant in enforcing the Constitution. Instead, the Supreme court, like many of the lower court judges, have proven to embrace judicial activism and not judicial restraint. Therefore, liberties were lost.
In the end, Chief Justice Roberts allowed Obamacare (ACA), as Roberts himself said, to “fundamentally change the relationship between the citizen and the federal government.” He added that the government’s position would authorize “Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.”
Even after his own rebuke of the ACA, Roberts quickly abandoned the words of the Constitution, and changed the relationship between the citizen and the federal government, as the high court transformed what was enacted as a penalty under the Commerce Clause, into a tax under the taxation power. A power that Congress and Obama insisted was not an encouragement of insurance by the imposition of a tax. That is because burdensome taxes are not popular by the American people, therefore, an unelected court, who tries to call themselves an independent and non-partisan branch, effectively relieved Congress of the political burden of calling a spade a spade, or calling a tax a tax. Furthermore, if Justice Roberts ruled on the legislation by using judicial restraint, rather than activism, he would have recognized that taxation under the cover of regulation IS TAXATION WITHOUT REGULATION, and therefore IS UNCONSTITUTIONAL!
Furthermore, CHIEF JUSTICE ROBERTS WOULD DO GOOD TO REMEMBER THE IMPORTANCE OF JUDICIAL RESTRAINT, and what it means to be a Judicial Activist.
- discovering new “rights” not found in the text
Sadly, ‘judicial activism’, is not a new thing, as in 1973 the Supreme Court once again legislated from the bench, rather than through Congress. They did so by finding, or discovering ‘new rights’ that are not found anywhere in the text of the constitution in the case Roe v. Wade. In that case, the Supreme Court heard two cases that challenged statutes that were regulating or completely outlawing abortion in the states of Texas and Georgia.
Justice William Rehnquist eliquently pointed out how the highest court wrongfully abused its power by creating a constitutional right, that did not exist before their ruling. He said…
“To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.”
Justice William Rehnquist
The elimination of so many statues on the grounds of a “right” never mentioned in the Constitution, and certainly deserving nowhere near the importance nor weight of the Right to Life, is simply absurd and a clear violation of the Court’s duty to apply the law to the facts of the case.
In Doe v. Bolton, Justice Byron R. White issued his dissenting opinion, which identified and articulated the Court’s usurpation of legislative power, when he said…
“I find nothing in the language or history of the Constitution to support the Court’s judgments. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dis-entitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.”
Then, despite the Supreme Court making the grave error in legislating from the bench a new law that did not exist with Roe v. Wade, they continued their judicial activism in the case Planned Parenthood v. Casey. In the case, the Supreme court justified expanding Roe v. Wade, by using a tool called ‘repeat judicial activism,’ where they based abortion suits on “case law” rather than legislation. Therefore, they once again justified ‘judicial activism’, because they based it on their former case Roe v. Wade. In other words, once a case is legislated from the bench once, it becomes law, which future laws can be then based on, rather than on the words of the Constitution itself.
Consequently, ‘activist judges’ cite former ‘case law’ in justifying their court decisions, and claim that it makes for more uniform and consistent laws throughout the United States. However, it also allows bad judicial decisions and precedents to give power to other judges to employ ‘judicial activism’ and replicate their decisions, regardless of its lack of being based on constitutional law.
In the end, judges take their oath to follow the constitutional law, not to follow in the footsteps of other judges.
- bending the text of the Constitution or a law to comport with the judge’s own sensibilities
In June of 2018, the Supreme Court smacked down multiple lower court ‘activist judges’ rulings that attacked President Trump’s travel ban, which was designed to stop radical islamic jihadist terror threats on United States interests and citizens.
In the lower courts, and some within the Supreme Court itself declared the Presidents move to block travel from countries who are well-known to be state sponsors of terror, or on the terror watch list ‘racist’, despite it being well within the scope of the Presidents authority, and under his legal obligation to protect ‘We the People”. Regardless, the highest courts’ majority ruled that what President Trump had done, was based on Congressional laws that were legally passed, and “well within executive authority and could have been taken by any other president.” Furthermore, they pointed out how the President’s authority fell under the Immigration and Nationality Act.
Justice Clarence Thomas pointed out how lower courts decisions, issued orders that were “legally and historically dubious.” Justice Thomas went further in warning that if the lower courts continue using them, the Supremes would be “duty-bound” to adjudicate.
Rather than succumb to these temptations, judges should strive to put aside their personal views and policy preferences in order to maintain impartiality and render sound judgments according to the laws as written.
Ultimately, ‘judicial activism’ is easy to understand with real cases, as our nation which was envisioned by our Founding Fathers has been twisted and perverted by judges who base legislation on rulings, precident, and personal beliefs, rather than rule base rulings on legislation and the constitution. After all, our Founding Fathers believed that our nation should be based on a government of laws, and not of men. However, Judicial Activists base our laws on the precident of men, and not necessarily the laws themselves.
Democrats and Progressives try to claim that conservatives and constitutional originalists cite ‘judicial activism’, simply because they don’t like the judges ruling. However, conservatives and constitutional originalists just want judges to do their jobs under the constitution, and base their rulings on the words of the constitution itself, and not personal opinions or ideological beliefs.
In the end, interpreting the laws in light of their original public meaning is not always an easy task, but it is the surest way for judges to resist the temptation to stray from the text of the constitution, and to become entangled in ‘judicial activism’.
Now, as America has elected what has proven to be one of the MOST CONSERVATIVE PRESIDENTS in history, Chief Justice Roberts is proving to be shifting from a once conservative position, towards more liberal positions…
|Samuel Alito Jr.||96%||91%||90%||85%||81%||84%|
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Although we do know that Chief Justice John Roberts, who was nominated by George W. Bush was once a reliable and strong conservative, we don’t know what has caused his leftward shirt…
After all, Chief Justice Roberts 2012 decision to vote in favor of the Affordable Care Act (Obamacare), and then Roberts “sided with the Supreme Court’s liberal bloc, and against his conservative colleagues in favor of housing-rights activists and a black death row inmate.” There have been countless other cases, which more than half of the time the Chief Justice rules based on strict constitutionalism, but he is bordering on becoming a swing vote between an activist and originalist judge.
Regardless, in the end, how does all this matter? IT MATTERS BIG TIME, because in the next term, the court will decide the fate of partisan gerrymandering, which will tremendously shape the future of American democracy. The high court will decide a case about a business owner refusing to serve a same-sex couple, shaping the future of gay rights. The high court will decide a case about cell phones and the privacy of our data. The high court will likely decide on issues ranging form the death penalty, gun rights, abortion, and countless other issues.
In the end, Chief Justice John Roberts may criticize the President for his criticisms of fellow members of his judiciary, but Roberts would do good to look at the record of his fellow judges, justices, and even his own record. The Chief Justice would do good to look at the countless acts of Demcorats using the judiciary as a weapon to violate the separation of powers, and upend a duly elected leader of the United States. Furthermore, for Chief Justice John Roberts to make such an outlandish attack on the President, for simply pointing out how some judges base their decisions on opinion, rather than constitutional law, it is shameful. Especially, when he has refused to repudiate those within his own branch of government, who wrongfully attack the Presidents refreshingly honest assessment of ‘judicial activism’, and the ‘weaponization of the judicaial branch’. After all, the Chief Justice is attacking the President for simply pointing out their wrongdoing, while judges and justices, including Roberts himself, have unconstitutionally legislated from the bench, thus violating their oath of office, and the Constitution of the United States.