Analysis: Our Founding Fathers were certainly inspired by our Lord, but they were not God. So, it should come as no surprise that they did make some serious mistakes when drafting and enacting the Constitution of the United States. One of these was to allow presidents to put nine establishment political hacks in power, and then call them justices of our Supreme Court. This may sound extreme, but it is true. Just look at the just-released annual report on the federal judiciary, issued by none other than Chief Justice John Roberts, who was nominated to preside over the Supreme Court by George W. Bush, a so-called conservative Republican president no less.
In this annual report, Roberts – obviously writing for all of the nine justices, including “his eminence” – tries to head off a legal challenge to newly Obama-appointed Justice Elena Kagan hearing the upcoming constitutional challenge to Obamacare. In a New York Times front-page story on Jan. 1, 2012, titled “Chief Justice Defends Peers on Health Law,” the paper reveals:
In the face of a growing controversy over whether two Supreme Court justices should disqualify themselves from the challenge to the 2010 health care overhaul law, Chief Justice John G. Roberts on Saturday defended the court’s ethical standards.
The chief justice’s comments came in his annual report on the state of the federal judiciary. In it he made what amounted to a vigorous defense of Justice Clarence Thomas and Elena Kagan who are facing calls to disqualify themselves from hearing the health care case, which will be argued over three days in late March. … ‘I have complete confidence in the capability of my colleagues to determine when recusal is warranted,’ Chief Justice Roberts wrote. ‘They are jurists of exceptional integrity and experience whose character and fitness have been examined through rigorous appointment and confirmation process. …’
Chief Justice Roberts said the Supreme Court’s unique status made it impossible for the justices to follow the practices of lower court judges in recusal matters. Lower-court judges can be replaced if they decide to disqualify themselves, he said, and their decisions about recusal can be reviewed by higher courts.
"The Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse. …"
Beyond his apparent defense of Justices Thomas and Kagan, the chief justice used the report to fend off critics who say the Supreme Court justices should be bound by the same code of judicial ethics that applies to other federal judges. … The constitutionality of those laws remains on open question. … ‘A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy,’ he added.”
So there you have it. As confirmed by even the liberal New York Times, the nine justices of the Supreme Court are above the law, do not need to act ethically under the accepted legal standards for other federal judges and are in effect judicial royalty – answerable only to themselves for misdeeds and not “We the People.” In his annual report, Chief Justice Roberts, obviously speaking for his colleagues, flips the American people “the bird” and declares war on the noble vision of our Founding Fathers. Roberts’ arrogant and lawless statements are in effect an attack against ordinary citizens, who look to the Supreme Court to represent their interests against the tyranny of the other two branches of government, rather than having the nine justices represent only their own establishment interests.
How did we come to this; a Supreme Court that, notwithstanding the skewed political ideology of its members, believes that it is above the law and virtually the legal equivalent of God?
The sad reality is that to become a Supreme Court justice a lawyer must “kiss derriere” for most of his career, sucking up to the Washington establishment, never making terribly controversial remarks, or if he or she is a lower-court judge, never issuing a very polarizing decision. In effect, what we get – given that Supreme Court justices are chosen and nominated by the president – are politicians in black robes.
Chief Justice Roberts is a textbook example of this. He spent his entire career slithering around Washington, D.C., ingratiating himself with the powers that be, and was, thanks to establishment Republican grease, eventually nominated by President George W. Bush to the Supreme Court. Never having stuck his neck out for the American people (he did lobby for “homosexual rights” though), being of little controversy and the proverbial “yes man,” Roberts was easily confirmed, with even substantial Democratic support. For Roberts is one of the establishment’s own, not accountable to “We the People.” Indeed, the Washington, D.C., mega-law firm from which he hails, Hogan and Hartson, is chock full of Republican and Democratic lobbyist greasers of great “esteem” and influence. They demonstrated this influence in having one of their own named chief justice of the Supreme Court.
Last Thursday, I filed what is called an amicus curiae brief before the Supreme Court seeking to have Justice Elena Kagan either recuse herself or be disqualified by her fellow justices in the Obamacare case. See www.freedomwatchusa.org. In it, I directly challenge the statements of Chief Justice Roberts – obviously supported by the other eight justices – and argue that Justice Kagan should be disqualified because as President Obama’s solicitor general she advocated for and supported his health-care legislation. Thus, unlike Justice Thomas, who took no action either in support or opposition of the law (only his wife, Ginny Thomas, has been attacked for her so-called partisan advocacy), Justice Kagan has a textbook conflict of interest and may not ethically sit on the case. It does not take rocket science to figure this out!
While I am hopeful that the Supreme Court will declare Obamacare unconstitutional without input from Justice Kagan, the bigger issue is the one put in play by Chief Justice Roberts. For if “our Supreme Court” is indeed not “ours,” but theirs – meaning the establishment-appointed justices themselves – then “We the People” are truly defenseless from the evil deeds of government officials.
This is a formula for revolution, and in my amicus brief I laid it on the line with the justices. Either they shape up by representing us, or ship out!
About the author: Larry Klayman is a former Justice Department prosecutor and the founder of Judicial Watch and Freedom Watch. His latest book is "Whores: Why and How I Came to Fight the Establishment."