John Roberts pulls out the thesaurus for one of Trump’s nearly 11,000 lies

Chief Justice John Roberts used every euphemism in the thesaurus this week to accuse the Trump administration of lying.

“The evidence tells a story that does not match the . . . explanation.”

“The sole stated reason — seems to have been contrived.”

There was “a significant mismatch between the decision . . . and the rationale.”

The “explanation . . . is incongruent with what the record reveals.”

Furthermore, it was a “distraction” from the truth, “based on a pretextual rationale” and lacked “a rational connection between the facts found and the choice made.”

The chief justice, writing for the majority in the closely watched census case, was referring to Commerce Secretary Wilbur Ross’s baldfaced lie: He testified to Congress that he added a citizenship question to the census “solely” because the Justice Department requested it to help with enforcement of the Voting Rights Act. Three separate judges found that to be false , and evidence emerging since the trials confirmed appearances: The real rationale was to reduce the power of nonwhite people and Democrats.

“We cannot ignore the disconnect between the decision made and the explanation given,” Roberts wrote, noting that precedent says the Supreme Court isn’t “required to exhibit a naiveté from which ordinary citizens are free.” He went on: “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

The truth was on trial before the Supreme Court in the census case. The good news: The facts won. The bad news: It was a 5-to-4 decision.

Incredibly, Justice Samuel Alito, in a dissent, argued that it’s perfectly acceptable for the administration to lie to the courts. “The federal judiciary has no authority to stick its nose into . . . whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.” Phony reasons are welcome in Alito’s courtroom!

The victory might be temporary — Roberts essentially invited the administration to concoct a new rationale for the discriminatory census question — but in this dark moment for the truth, it’s worth celebrating even a fleeting acknowledgment from the high court that facts still matter.

Dishonesty is the coin of the realm for President Trump, who is closing in on 11,000 falsehoods, by The Post’s tally, while various of his former officials have been convicted of lying. Trump delights his supporters by declaring unwelcome facts “fake news,” and the courts have struggled with his falsehoods. Judge Amy Berman Jackson, sentencing former Trump campaign chairman Paul Manafort, nobly proclaimed that “court is one of those places where facts still matter,” but that’s not always true: In embracing Trump’s “travel ban,” the Supreme Court accepted the administration’s pretext and determinedly ignored extensive evidence of Trump’s anti-Muslim bias.

The census was different for Roberts, who, as he has done in a few politically charged cases, sided with the court’s liberal justices in an apparent effort to protect the court’s credibility.

The Census Bureau’s own experts strongly resisted the citizenship question, saying it would suppress participation by households with noncitizens — even legal ones — by about 8 percent and cause a 2.2 percentage-point drop-off in participation. Emails made public after the Supreme Court heard the case show that the architect of the plan saw the move as “advantageous to Republicans and non-Hispanic whites.” One of the judges who originally heard the case issued a further ruling this week that the new evidence points to a “possible, if not likely, conclusion that the decision-makers adopted [the architect’s] discriminatory purpose.”

The chief justice, though not touching the recent evidence, argued that while courts generally don’t second-guess policy makers’ motivations, there is an exception for a “strong showing of bad faith.” Ross himself had changed his story , eventually admitting that he nudged the Justice Department to request the citizenship question — as cover for a move he had pushed from the start with White House encouragement.

The law, Roberts wrote, requires “that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise.”

Justice Clarence Thomas, joined by both Trump appointees, Justices Neil Gorsuch and Brett Kavanaugh, took a position similar to Alito’s: The truth is irrelevant. Ridiculing the majority’s view that Ross “must not be telling the truth,” Thomas protested: “Pretext is virtually never an appropriate or relevant inquiry for a reviewing court to undertake.”

That acceptance of pretext fits Trump’s worldview. Trump tweeted after the ruling that he wants to “delay the Census, no matter how long,” to get the question resolved. Who cares if the Constitution says otherwise?

The administration previously claimed the deadline to finalize the 2020 Census was this month. But this, apparently, was another lie.

The Supreme Court’s Legitimacy Crisis

the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.

.. And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.

.. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.

.. Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.

.. If fate were to hand President Trump one more opportunity to put a justice on the court before 2021, it would almost certainly again be a bitterly contested and close vote, and it would probably leave us with a majority of Supreme Court justices, five, who were confirmed by senators who received a minority share of the vote.

.. no Democratic president has ever taken office after losing the popular vote. And second, justices nominated by Democrats have never been confirmed by such narrow margins. Of the four liberals currently on the court, all received 63 votes or more, from senators winning and representing clear majorities of their voters.

.. we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.

.. Bill Clinton and Barack Obama did not nominate jurists who had left paper trails of judicial extremism or dropped other hints that their jurisprudence would be radical.

.. outsourced the judicial-selection process to right-wing groups like the Federalist Society and the Heritage Foundation and twice nominated judges with an eye cast largely toward how happy they would make conservative evangelicals.

.. Republicans are doing to the Supreme Court what they have already accomplished in Congress. There, through aggressive gerrymandering, they’ve muscled their way to a majority even as their candidates have sometimes received collectively fewer votes than Democrats. And now they’re doing it to the court, by breaking the rules (Merrick Garland) and advancing nominees who are confirmed by legislators representing minority support.

Who Is Brett Kavanaugh?

Contrary to what supporters say, he’s no originalist.

But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.

.. Judge Kavanaugh leaned a bit toward an originalist approach in two opinions, one in 2008, the other in 2011. But when he was asked in 2016 whether he considered himself an originalist, he didn’t answer, and in a 2017 lecture, he expressed caution. “History and tradition, liberty, and judicial restraint and deference to the legislature,” he explained, “compete for primacy of place in different areas of the Supreme Court’s jurisprudence.”

To a pure originalist, this is an incoherent mixing of methodologies. Any ruling that departs from the original meaning should be thrown out. Judge Kavanaugh has called for no such thing.

.. Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neal Gorsuch — lay claim to textualism as a guiding principle.

But textualism doesn’t serve as an overarching theory for conservative jurisprudence. Textualist interpretation can produce liberal as well as conservative interpretations of statutes. And because ambiguous phrasing in laws leaves judges with choices to make, it doesn’t put much of a restraint on judges. As Judge Kavanaugh has said, quoting the liberal-moderate Justice Elena Kagan, “We are all textualists now.” This means that textualism offers neither a clear dividing line from liberals nor the historical gravitas of originalism.

.. This is clear from the conservatives’ expansive interpretation of the First Amendment’s guarantee of free speech, an approach that has no historical support from the time the First Amendment was written. Despite this, in a series of decisions, from Citizens United in 2010, which opened a faucet of campaign donations and spending, to Janus v. AFSCME in June, which diminished the clout of unions by stopping them from collecting dues from all the workers they represent, conservatives have used the First Amendment to strike down laws that regulate corporations, help unions and limit the influence of money on politics.

.. Tellingly, the court has accepted far more cases involving challenges to regulations of conservative speech than previous courts, with a win rate of 69 percent, compared with 21 percent for cases involving liberal speech. Judge Kavanaugh, too, has embraced this business-friendly interpretation of the First Amendment.

.. With five reliable members, the court’s conservative wing will be in a position to accomplish much, and for the most part it will be easier to achieve its goals without originalism.

.. Expect a reappearance, however, when it comes time to reconsider the constitutional right to abortion access established in Roe v. Wade. With that important exception, originalism has largely served its purpose and can be cast away

.. Judge Kavanaugh’s supporters call him an originalist rather than the pro-business Republican he is because of the theory’s claim that it separates law from politics. As the gap between originalism and the greater goals of conservative jurisprudence widens, however, the claim that the Supreme Court stands above the political fray, already damaged, will become harder to sustain.

 

 

Confident and Assertive, Gorsuch Hurries to Make His Mark

New justices usually take years to find their footing at the Supreme Court. For Justice Neil M. Gorsuch, who joined the court in April, a couple of months seem to have sufficed.

His early opinions were remarkably self-assured. He tangled with his new colleagues, lectured them on the role of the institution he had just joined, and made broad jurisprudential pronouncements in minor cases.

.. When the case was argued in April, Justice Samuel A. Alito Jr., who joined the court in 2006, said there was no clear answer to the question.

.. In dissent, he said the answer was plain, as some kinds of cases belong in one court and other kinds in another.

.. Justice Gorsuch’s only majority opinion of the term came in Henson v. Santander Consumer USA. It was about debt collection, and it was unanimous.

Here, too, Justice Gorsuch was ready to swing for the fences.