Roberts Agonistes

Kurt Schlichter, a highly experienced attorney, has written a very good article about John Roberts. I’m excerpting it here because I think Schlichter does well in explaining how Roberts—a very smart man in terms of raw intellect—is behaving foolishly in risking the very result he ostensibly wants to avoid: the discrediting of the federal judiciary.

In excerpting the article I’ve omitted the section in which Schlichter urges readers to basically stop talking about impeachment. His argument is that it’s not going to happen—67 votes in the Senate is simply out of reach—so let’s just give that up.

I don’t really have strong feelings on that issue, but I’ll point out that impeachment is not a judicial remedy—it’s a political remedy that expresses a political judgment. Further, the Senate’s 67 vote requirement is a vote for removal—impeachment itself stands on its own as the judgment of the House. As a political remedy, the considerations that go into the decision to impeach are also political. I make no claim to be a canny political operator, but I can imagine circumstances in which politicians might decide to impeach even though a removal vote is known to be out of reach.

I’ve also omitted Schlichter’s psychologizing. I’m not sure what drives Roberts. It could be as petty as dislike for Trump, resentment of Trump’s criticisms. It could be misguided prudential considerations based on a generally defensible jurisprudential philosophy—but I agree with Schlichter that, in that case, Roberts is being foolish in the practical application of his philosophy, not prudent.

With that …

The Agony of John Roberts

Article III of our Constitution provides for the judicial branch, but it does not expressly provide the judiciary with any powers other than those it earns in the eyes of the other two branches. It cannot self-enforce its decrees. Article I creates the Congress, and the legislative branch has both the power of the purse and the power to impeach to check the judiciary. Article II establishes the presidency, but the Constitution does not specify its checks and balances over the court. That power is implied, and the implied power is for the executive – who runs the machinery of the federal government, including the cogs and gears that carry guns – to simply say “No” to an out-of-control judiciary. This implied power of defiance is as much a check and balance as any enumerated one, and without it, you would have an unchecked judiciary with hundreds of district court judges presuming to micromanage the legitimate actions of the executive branch.

Judge Roberts’s problem is that he wants to return to something like regular order in the judiciary. What we have is highly irregular order.

John Roberts wants the normal appellate procedures to apply. ... This was the main takeaway from his unbelievably tone-deaf response to Trump’s, Musk’s, and others’ frustration-driven talk about impeachment.

In normal times, the response to a judge over one dumb decision is the appellate process. But these are not normal times. ... And the answer here is not the appellate process because the appellate process is long, drawn out, and deliberate. The goal of this campaign is to use that delay to effectively strip Donald Trump of the ability to govern.

Let me interject here. Margot Cleveland makes much—and rightly so—of two cases in which Dem plaintiff’s, having succeeded at the lower court level, have attempted to induce the lower courts to withdraw their actions when Trump has appealed. This is to prevent an adverse appellate ruling that they saw coming. This is a patent abuse of the judicial system for the purpose, as Schlichter remains, to “effectively strip Donald Trump of the ability to govern.” As such it is in its own way as much of an insurrection as J6 ever was. Thus:

So, we have a system that is not being used normally and that is not being used for a normal purpose.

Procedurally, [Roberts] needs to lead the charge to stop the imposition and use of these bizarre nationwide orders and injunctions by giving the circuit courts of appeal clear guidance to end this nonsense. Substantively, he needs to direct the circuit courts to issue stays on district court orders that far exceed the scope of the judiciary’s proper powers. And if the circuit courts of appeal refuse to do that, then the Supreme Court needs to issue the orders to enforce its will, even if that means issuing dozens and dozens of orders.

Roberts’ failure to issue guidance on district courts issuing nationwide orders is itself an impeachment of Roberts’ judgement.

What John Roberts is risking by refusing to put an end to these abuses is the Trump administration putting an end to these abuses by exercising its implied power under the Constitution to check an out-of-control judiciary.

John Roberts is running out of friends. The leftists hate him. ... He’s got a little in the tank left on the right, but if he keeps this up, he’s going to be running on empty. Roberts still thinks that he can dip his toe into politics to protect his institution (see, e.g., his ridiculous, political Obamacare opinion), but he hasn’t thought through how he can do that without any friends to back him up when the executive pushes back.

At some point, unless Robert puts a stop to this misconduct, Trump will simply refuse to obey. And when he does, he will ensure it is over some utterly outrageous order where he is acting both at the height of his Article II powers ... and at the height of his political power ... He will resist from strength, while the judiciary fulminates impotently from weakness.

80% of normals right now believe the President should obey court orders. That will change if this keeps up and as Trump highlights the abuses, but right now, America is not politically ready for that fight, and Trump doesn’t need to pull the trigger yet.

But John Roberts better understand that if it comes to obeying the courts or neutering the executive branch and defying the will of the people, as expressed in the last election, the courts are going to lose. They don’t have any cops. They don’t have any Army divisions. All they have is their respect, and John Roberts’s underlings are busy squandering it.