About The Roberts Court

The Chief Justice of the Supreme Court, John Roberts, is normally very reserved in making statements about public matters, and especially not about matters that could end up before the SCOTUS. Yesterday Roberts did issue a brief statement on an important public matter that concerns the federal courts. However, nota bene, this is not a matter that is likely to wind up in front of the SCOTUS. There has been quite a buzz surround Roberts’ statement, with progs exulting that Roberts “rebuked” Trump and some conservatives moaning that Roberts “supported” an out of control judge. Neither reaction is really correct. Let’s start with the statement itself:

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

Clearly Roberts is saying nothing about the current controversies regarding Executive powers. He is addressing only the talk of Congress taking action—through the impeachment process—against judges who have ruled against some of the Trump EOs. This statement is neither a defense of the judges nor of their rulings. It’s a statement of how Roberts believes the constitutional process of separation of powers and checks and balances should operate with regard to the federal judiciary. Please note the language he uses: “it has been established.” In contect, what he’s saying is that the generally accepted remedy for abuses on the part of the lower courts has not been impeachment but the operation of the appellate process. More on that below. Roberts is not suggesting that Congress has no power to impeach judges for getting things wrong—and thus impeachment matters will not wind up in front of the SCOTUS. He is only maintaining that the two centuries old traditional view has been that impeachment is the wrong way to address such issues. In the ordinary course, impeachment should be reserved to ethical misconduct.

This statement needs to be understood in the context of the Judicial Power of the United States, which is set out in Article III of the Constitution. Brief as Article III is, I’ll provide an abbreviated version—to illustrate just how limited the powers of the Chief Justice and the SCOTUS in general are. Americans are used to viewing the SCOTUS as a superpower among the branches of government, but that is a perception that has been distorted by history. So:

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

What should be clear from this is that the federal judiciary, while constituting a “branch” of the government, is largely a creature of Congress. Also that the SCOTUS is normally only able to exercise its judicial power—has jurisdiction of a matter—when “cases or controversies” come to it through the appellate process. This is the reason why the SCOTUS—and especially the Roberts Court—prefers to have cases and controversies coming under its jurisdiction in a fully developed manner—with the issues clearly defined through operation of the lower and appellate level courts.

Some commenters see me as “defending” Roberts. The answer to that is, Yes and no. I don’t defend all his decisions, but I do think his cautious approach to the exercise of “judicial power” is often wise. That is, the theory is generally wise, even if the practical application of the theory may fall short at times. Here are some comments (very slightly edited) that I wrote last night and this morning:

Roberts’ statement today wasn't a *defense* of the Obama judges. It relied on a bit of a fiction, as if some of the judicial antics we're seeing fall within normal parameters on which reasonable legal scholars can agree to disagree. The reality, of course, is that many of these judges are documentably driven by partisan/ideological considerations that could wreak havoc going forward on our entire constitutional order, because they're obsessed with Orange Man Bad. In that context, Roberts' statement really was more of a warning to the judges to exercise restraint because Roberts has no control over what Congress could decide to do. They're playing with fire by being unreasonable.

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The Constitution says that federal judges "shall hold their Offices during good Behaviour." What Roberts is quite explicitly saying is that **simply getting the law wrong doesn't qualify ipso facto as "bad Behaviour. If that were the case, every judge--liberal or otherwise--whose decisions have ever been reversed by a higher court would be rightly subject to impeachment.** Thus, Roberts is not defending Boasberg specifically--indeed, Boasberg is not the only judge who has been threatened with impeachment over the handling of these various cases. Roberts is essentially arguing that cooler heads should prevail and will prevail and that Congress and the Executive should be patient while the courts work through this--holding to the traditional standard for impeachment in the meantime.

Note that Roberts doesn't suggest that impeachment is somehow illegitimate, but rather that impeachment of judges as a remedy in these political disputes would likely prove to be unwise, chaotic, and destructive if broadly used. He knows that the other branches of government also have a sworn duty to uphold the constitution--not to simply lie down for the courts--so he argues for restraint by Congress and the Executive while also trying to give an example of restraint on his own part for the lower courts and his colleagues on the SCOTUS.

Of course, what Roberts doesn't want to acknowledge is that in modern times courts have abused their powers and applied ideological standards rather than constitutional standards. He is trying to preserve the prestige of the courts and the idea that rule of law can work through the courts in spite of abuses. In doing so he has very few tools to work with. The determination of ideological or partisan judges could bring the whole edifice of the judicial branch tumbling down if they're not careful.

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[Challenging abuses by Congress and/or the Judiciary] is the role of the president, who is the only official who represents We the People as a whole. Recall when the Obamacare bill went to the SCOTUS, Roberts' reasoning basically amounted to: At some point we need to listen to the voice of the people. Well?

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A good case can be made that, in the Obamacare case, Roberts tried to save liberal Congressional unconstitutional overreach by forging a compromise of his own devising. While he apparently thought he was doing this for the good of the country he instead fueled dissension. That experience may explain why he now seems gunshy about highly political cases. I think he's highly aware of this:

"Alexander Hamilton famously wrote in the Federalist Papers, the judiciary is the weakest of our three branches of government. Without “purse” or “sword,” the US Supreme Court is dependent on the willingness of others to enforce its orders and on the public’s belief in its impartiality"

This article provides an interesting explanation of what took place with the Obamacare decision--which I criticized strongly at the time. Note that Trump, at that time, also criticized Roberts in populist terms. Both Trump and Roberts no doubt remember that.

https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.html

I’ll take a shortcut at this point. Rather than expand on these matters (above) myself, I’ll quote Shipwreckedcrew for support. One reason for doing so—if I recall correctly—is that Shipwrecked was initially a bit leery of Trump’s challenges to the courts, but has come around to an understanding of the deeper issues at play here—which Trumpian rhetoric doesn’t often allow for.

Shipwrecked begins by directly addressing what he believes lies behind Roberts’ statement. He acknowledges Roberts’ concern for the damage to our constitutional order that can result from controversies between the branches on fundamental constitutional issues. But please note that at the very end he explains that Roberts’ critics have valid objections to his go slow approach, which can also lead to damage by allowing readily resolvable controversies to continue. That’s easy for us to say, of course, but it’s Roberts who has to make the right call.

I don't think Roberts' likes controversy between the branches to play out in the media.

My guess is he thinks the Administration Officials are making attacks on the Judges for political purposes.

He's making the point that for nearly 250 years there has been an avenue open to the Executive Branch when it disagrees with judicial decisions -- the appeals process.

To date, the Administration has done pretty well with the appellate courts.

I think the frustrations reflected by public commentary are twofold:

1. Shouldn't need to go to appeals route if district judges would "stay in their lane." I evaluate this complaint on a case-by-case basis, but the broader MAGA public sees it collectively.

2. The appeals process, even if working largely in Trump's favor, still takes too long and is compromising the timeline that Trump has to bring about the changes he is seeking to make.

This is a valid complaint, and the Appeals Court and SCOTUS need to address it.

Boom. The appellate courts and SCOTUS need to address these matters in a timely fashion rather than allowing them to fester. And so Shipwrecked next addresses a fundamental issue in many, even most, of these cases:

But the problem is that jurisdiction is quite dubious in some of these cases.

So, when the Exec. believes the Court issuing the Order lacks jurisdiction to do so, then what?

Federal courts are courts of limited jurisdiction.

BOTH parties are always allowed to raise the issue of jurisdiction, and it is the obligation of the court to make a conclusive determination that it has jurisdiction.

Too many of these liberal district judges are motivated to act by their prejudging the merits and the "harms" being done by changes in Govt policy. They want to pause the harm -- but assume jurisdiction to [do] so when they should not.

I would argue from this that, by seizing jurisdiction when it doesn’t exist, these judges are illustrating that the issue really is no longer one of simply “wrong decisions” being made. They are, in essence, acting outside the “judicial power” and inserting themselves into the political process in a way that is much more naked than simply an incorrect interpretation of a statute or EO. This reality is what drives the calls for impeachment—the application of raw judicial power outside its constitutional bounds. Roberts, of course, doesn’t want to address this issue publicly and would prefer to try to preserve the construct of judicial impartiality by basically trivializing these serious matters into “disagreements about decisions.”

In this next tweet Shipwrecked expands on what he sees as a fundamental misconception on the part of many judges regarding the actual “identity” of the federal courts in our constitutional order. Compare this to the quote above from Article III. However, note the question that Shipwrecked is responding to:

Question, can there be a constitutional crisis between a "lower federal court" created by congress and the president?

[NO] -- and I think that is part of the modern construct that is an erroneous view of the relationship of the three branches to each other.

The Judiciary seems to view itself like a "Borg" -- a monolith with multiple members all of whom make up the "whole". I think district judges have internalized the conceit that they are a stand-in for the Supreme Court -- that their decisions are no different that SCOTUS decisions unless and until they are told they are wrong by a higher court.

The Executive -- on the other hand -- is seen as only one person, and everyone below him is an inferior official that can be condescended to or ignored.

It's analogous to the view that a Congressional Subcommittee's act is deemed an action of Congress itself until Congress says otherwise.

The reality is that the ultimate guarantors of our constitutional order are We the People—government by the people. This is what gives the POTUS his high degree of authority, because the POTUS is the only official elected by the people on a national basis. However, to distinguish this ultimate reality from “mobocracy” our Constitution has established an elaborate republican form of government to, in effect, mediate sovereignty through its structures. This system features a separation of powers—but also recognizes that each branch should act, when necessary, to check and balance other branches that get out of line. No one branch is supreme. And there is no a priori reason to suppose that judges are less prone to abuses of power than are officials in the other branches—except for the limits placed on them by the Constitution.

To his credit, I think Roberts gets this. The routine use of checks and balances could prove destabilizing to the entire system, so they should be applied as sparingly as possible. This, I believe, is the thinking that lies behind his opposition to the broader use of impeachment.