Chief Justice John Roberts erroneously believes that his court is supreme to the other independent branches of government, yet he evidently doesn’t believe the Supreme Court is supreme to the lower courts of his own branch of government.
As a drive-by Thanksgiving curse to the nation last week, John Roberts took the extraordinary step of answering a question directly posed to his office by the AP regarding Trump’s frustration with lower court judges violating national sovereignty by issuing lawless injunctions. After Judge Jon Tigar took the unprecedented step of placing an injunction on our border admission policies and violated all legal norms and rules of standing, Trump said, “This was an Obama judge, and I’ll tell you what, it’s not going to happen like this anymore.”
When presented with the question by AP, rather than following tradition and simply saying “no comment,” Roberts responded, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” He concluded, “The independent judiciary is something we should all be thankful for.”
Despite the dead news cycle of Thanksgiving eve, this comment set off a firestorm of headlines blaring the news that the “Chief Justice hits Trump in rare rebuke.” Undoubtedly, Roberts knew exactly how the media would convey his remark.
This comment is even more troubling than many realize, and it has nothing to do with Trump. It has everything to do with dangerous judicial supremacy of the robed priesthood and a reluctance to actually reform that priesthood from his perch as high priest.
As I’ve observed in painstaking detail over the past few years, despite the conservative-leaning Supreme Court, the lower courts are more liberal than ever and are violating the most basic legal doctrines of standing and the plenary power doctrine on immigration. Yet the Supreme Court has continuously been slow to take up the appeals from these unprecedented injunctions and often refuses to take up the appeals at all, even though these rulings violate settled law on immigration. Even when it does, the decisions fail to categorically rebuke these lower court judges, as Clarence Thomas has done in his own writings.
As such, I have concluded that despite the optimism on the Right of a more conservative Supreme Court, there won’t be enough Clarence Thomases to shut down the endless lawless lawfare in the lower courts. Worse, because the political class has already put the Supreme Court on notice for being “political,” Roberts is even more reluctant to aggressively take emergency appeals and categorically rebuke those judges. As Vanderbilt Law School Professor Brian Fitzpatrick predicted on my podcast several months ago, Roberts and several other justices will be “conservative” in the sense that they will be cautious to aggressively swat down these lower court opinions.
And let’s not forget that while the other branches continue to regard lower courts as supreme and John Roberts fails to act, there is irreversible damage from these injunctions on our national security policy. “It’s very concerning,” Professor Fitzpatrick told me, “because the Supreme Court is conservative institutionally … they do not like to get involved in matters until the issue has received percolation. They like legal issues to have been bounced around in the lower courts for years before they drop in and settle the issue.”
Thus, Roberts and his colleagues are allowing every radical lower court trend to gain traction. There is nothing out of bounds in his mind — except for Trump’s frustration with this process.
If lower courts are violating the law on the one hand and if members of the other branches of government are saying things that politically offend the Chief Justice on the other hand, which one should he be quicker to rebuke? Roberts has been completely silent about lawless lower court judges, but suddenly, he’s quick on the draw when it comes to rebuking the president — the executive branch — for simply making a political statement about the bad opinions, which is what one would expect from a president of either party. Is Roberts now suggesting that the judiciary is above reproach?
“The independent judiciary” is a mindless bromide being used to silence debate, and just like the canard of “separation of church and state,” it is not in the Constitution. The Constitution says the exact opposite. No branch of government can make itself supreme or independent from the reach of the other branches’ powers. In fact, the entire judiciary and its structure was created by Congress. Congress has full authority to strip Roberts’ court of all appellate jurisdiction and abolish the lower courts altogether. As Roberts’ colleague, Clarence Thomas, recently wrote, “When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”
Accordingly, if Congress were to exercise this power, would Roberts bemoan the assault on the “independent judiciary”?
Turns out the Constitution itself didn’t respect an independent judiciary, because it gave Congress the power to regulate its jurisdiction. As Edmund Randolph, the first attorney general of the United States, said in 1790, “The Supreme Court, though inherent in the Constitution, was to receive the first motion from Congress; the inferior courts must have slept forever without the pleasure of Congress.”
Roberts believes in judicial supremacism. But that belief makes his utter callous disregard of lower court tyranny all the more indefensible. Roberts has already allowed an egregious global warming lawsuit to proceed; he has allowed courts to mandate that Trump continue Obama’s discretionary policies; and he has enabled the Ninth Circuit to force Arizona to follow Obama’s amnesty rather than our sovereignty laws on the books.
The real question is how many of the other justices will follow the lead of Roberts and go out of their way to show that they are not deferential to Trump, even when the law requires that result? Justices Alito and Kavanaugh did not join Thomas and Gorsuch in trying to stop the insane global warming lawsuit.
The more Roberts continues this duplicity of wielding judicial supremacism over the president but taking a hands-off approach to his lawless minions in the lower courts, he will learn the lesson of Scalia’s prophecy in his blockbuster Obergefell dissent: “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.