{"id":1138363,"date":"2023-07-17T11:06:39","date_gmt":"2023-07-17T11:06:39","guid":{"rendered":"https:\/\/jacobin.com\/2023\/07\/chief-justice-john-roberts-absolute-power-supreme-court-corruption-ethics\/"},"modified":"2023-07-17T11:09:28","modified_gmt":"2023-07-17T11:09:28","slug":"chief-justice-roberts-wants-absolute-power-in-the-supreme-court-if-its-conservative","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2023\/07\/17\/chief-justice-roberts-wants-absolute-power-in-the-supreme-court-if-its-conservative\/","title":{"rendered":"Chief Justice Roberts Wants Absolute Power in the Supreme Court \u2014 If It\u2019s Conservative"},"content":{"rendered":"\n \n\n\n\n

In the early 1980s, Chief Justice John Roberts, then a young lawyer, worked with the Reagan administration to strip power from a liberal judiciary. Today he has reversed course to shield the Supreme Court\u2019s absolute power.<\/h3>\n\n\n
\n \n
\n Chief Justice John Roberts in Washington, DC, January 26, 2009. (Jim Watson \/ AFP via Getty Images)\n <\/figcaption> \n<\/figure>\n\n\n\n\n \n

In the early 1980s, a young John Roberts was working as a lawyer in President Ronald Reagan\u2019s administration, crafting legal and constitutional arguments in favor of Republican efforts to strip power from a liberal judiciary that threatened their agenda.<\/p>\n

Roberts argued in a 1983 memo defending term limits for federal judges that the \u201cfederal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches.\u201d<\/p>\n

Now, as chief justice of the most conservative Supreme Court in a century, Roberts has reversed course to shield the court\u2019s absolute power. He has defended the court\u2019s decisions revoking rights from tens of millions of people against public outcry,\u00a0arguing<\/a> that\u00a0\u201cyou don\u2019t want the political branches telling you what the law is.\u201d<\/p>\n

\u201cIn the 1980s, when the Right felt that it had popular control that the judiciary was obstructing, [Roberts] had no trouble challenging the judiciary in the way that people on the Left want to do now,\u201d Samuel Moyn, a professor of law and history at Yale University, told the Lever.\u00a0 \u00a0 \u00a0 \u00a0\u00a0<\/em><\/p>\n

In recent months, a string of reports from ProPublica<\/em><\/a>\u00a0and other news outlets have detailed apparent violations of ethics laws among the Supreme Court\u2019s conservative justices, undermining the legitimacy of an institution that had already been captured by dark money and faced historically\u00a0low approval<\/a> ratings.<\/p>\n

The high court, meanwhile, has continued to issue decisions overturning decades of precedent and key components of the Democratic agenda \u2014 sometimes with little legal or constitutional basis \u2014 while Roberts has refused to comply with a congressional ethics investigation or conduct an internal investigation.<\/p>\n

Congressional Democrats have flirted with efforts to wrest power from the court, by attacking its legitimacy, seeking<\/a>\u00a0information<\/a> from\u00a0the justices\u2019 benefactors, proposing legislation to impose term limits and a code of ethics, and attempting to preempt judicial review in several recent pieces of legislation.<\/p>\n

Roberts has issued threats against lawmakers who want to conduct any oversight of the court \u2014 but it was Roberts himself who helped write the playbook they could now follow.<\/p>\n\n \n\n \n \n \n

\u201cThe Case for Insulating the Judges From Political Accountability Weakens\u201d<\/h2>\n \n

In the early 1980s, Southern Republicans like North Carolina senator Jesse Helms were concerned about the power of the federal judiciary to advance a liberal agenda and defang conservative policies, and proposed more than<\/a>\u00a0two dozen bills aimed at stripping power from the courts. In the previous two decades, the Supreme Court had defied social conservatives and entrenched abortion rights in\u00a0Roe v. Wade,<\/em>\u00a0upheld busing to enforce desegregation, and declared school prayers unconstitutional.<\/p>\n

Officials within the Reagan administration were split on the so-called \u201cjurisdiction stripping\u201d legislation and questioned whether it was constitutional. Roberts, then a lawyer in the Justice Department, seemed to favor the effort. He criticized the Office of Legal Counsel\u2019s assistant attorney general Ted Olson, who believed the efforts were unconstitutional, on numerous occasions<\/a>.<\/p>\n

\u201cOpposition to jurisdictional limits on constitutional grounds will be considered as a position of courage, integrity and principle,\u201d Olson had written in a memo on the legislation.<\/p>\n

\u201cReal courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises, and Brinks,\u201d Roberts\u00a0wrote<\/a>\u00a0in the margin of Olson\u2019s memo, referring to three liberal lawyers who had opposed the jurisdiction-stripping bills.<\/p>\n

Ken Starr, then Reagan\u2019s attorney general, directed Roberts to provide a reasoned defense of jurisdiction stripping.<\/p>\n

Roberts\u00a0wrote<\/a> in a 1981 memo that the Constitution\u2019s \u201cexceptions clause,\u201d which has been interpreted to allow Congress to strip power from the Supreme Court, was \u201cclear and unequivocal,\u201d adding that the framers of the Constitution \u201cwere not inartful draftsmen and can be expected to have known how to express the more restricted interpretations advanced by modern commentators had such constructions in fact been intended.\u201d<\/p>\n

\u201cHe was willing to get rowdy in facing down the judiciary,\u201d said Moyn.<\/p>\n

While jurisdiction stripping was favored by many conservatives at that time, Roberts also supported a far more fringe effort to rein in the courts.<\/p>\n

In 1983, a senator from Oklahoma who was concerned<\/a> about the power of federal judges \u201cto turn criminals loose\u201d introduced legislation to impose a ten-year term limit on federal judges, after which point the Senate could reconfirm them for an additional term. Reagan\u2019s Justice Department prepared a report opposing the amendment, arguing that it undermined judicial independence and taking issue with the fact that judges could be reconfirmed by the Senate without the involvement of the executive branch.<\/p>\n

But Roberts, at that point a White House lawyer, once again argued against his fellow administration lawyers, just months after the Supreme Court\u00a0handed down rulings<\/a>\u00a0that thwarted the power of the other two branches. Those decisions included ending Congress\u2019s \u201clegislative veto,\u201d blocking Reagan\u2019s deregulation of airbags and automatic seat belts and ruling that deregulation was subject to the same legal standards as issuing new regulations, and reaffirming the constitutional right to an abortion.<\/p>\n

On October 3, the first day of the Supreme Court\u2019s 1983\u201384 term, Roberts sent a conspicuously timed memo<\/a>\u00a0in favor of term limits for judges \u201cwithout possibility of reappointment\u201d by the Senate. The court was set to hear major cases that term including\u00a0Chevron v. NRDC<\/em>, which dealt with which branch of government \u2014 the courts or federal agencies \u2014 retained the power to interpret laws in certain cases.<\/p>\n

Roberts\u2019s memo claimed that the Justice Department\u2019s report opposing term limits was \u201csomewhat disingenuous\u201d because it cited documents from the time of America\u2019s founding that \u201cwere predicated on a view of the judge\u2019s role that many if not most sitting federal judges would find unacceptably circumscribed.\u201d<\/p>\n

\u201cTo the extent the judicial role is unabashedly viewed as one in which judges do more than simply figure out what the Framers intended,\u201d wrote Roberts, \u201cthe case for insulating the judges from political accountability weakens.\u201d<\/p>\n

He was arguing, in other words, that if the court was going to engage in politics, it could not also claim it was above politics and therefore immunized against accountability.<\/p>\n\n \n \n \n

\u201cA Very Lonely Dissenter\u201d<\/h2>\n \n

Between working as a Reagan administration lawyer and ascending to the high court himself, Roberts went from being a critic of the court\u2019s immunity from accountability to one of its staunchest defenders against any possible encroachment by Congress.<\/p>\n

\u201cSince he\u2019s been on the Supreme Court, he\u2019s [been] deeply skeptical of Congress being able to tell courts how to rule in a particular case, or to narrow the kinds of cases or the kinds of issues they can rule on,\u201d said Alan Trammell, a law professor at Washington and Lee University. \u201cSometimes he\u2019s been a very lonely dissenter on that.\u201d<\/p>\n

One such case was\u00a0Bank Markazi v. Peterson\u00a0<\/em>(2016), which dealt with a law passed by Congress that required the Iranian government to pay damages to US victims of terrorist attacks. Iran\u2019s central bank sued, arguing that the law violated the separation of powers by intervening in a specific, pending lawsuit over the damages. Seven justices on the court sided with Congress, but Roberts and Sonia Sotomayor dissented.<\/p>\n

\u201cToday\u2019s decision will indeed become a \u2018blueprint for extensive expansion of the legislative power\u2019 at the judiciary\u2019s expense,\u201d Roberts\u00a0wrote<\/a>\u00a0in his dissent.<\/p>\n

Roberts\u2019s careful guarding of the court could become a problem as Democrats consider even meager jurisdiction-stripping efforts as a way to enact their agenda. While they haven\u2019t proposed anything as radical as the bills introduced by Southern Republicans in the early 1980s, Democratic lawmakers have slipped anti-judicial review provisions into a handful of bills recently.<\/p>\n

In the Inflation Reduction Act, one of the keystone Democratic legislative initiatives of Joe Biden\u2019s presidency, lawmakers included language to prevent the courts from reviewing the prices negotiated as part of the measure allowing Medicare to negotiate lower drug prices on some medicines.<\/p>\n

Drug companies and their lobbying groups\u00a0have<\/a>\u00a0challenged<\/a>\u00a0this anti-judicial review provision as unconstitutional in lawsuits attempting to block the legislation from taking place.<\/p>\n

But a comprehensive study of congressional efforts to preempt the courts from reviewing agency decisions, conducted by Laura Dolbow, a fellow at the University of Pennsylvania Law School, found that such provisions in statutes are actually fairly common. \u201cAt least 190 provisions in the US Code expressly preclude judicial review over agency actions,\u201d according to a forthcoming article<\/a>\u00a0by Dolbow to be published in the Vanderbilt Law Review<\/em>.<\/p>\n

Medicare, Dolbow found, has the most of these laws of any program. \u201cIt\u2019s very common that when Congress sets up a program where Medicare will pay for health care services or pharmaceutical products, that it says the payment rate will not be subject to judicial review,\u201d Dolbow told the\u00a0Lever.<\/em><\/p>\n

While the courts typically respect the so-called \u201creview bars,\u201d Dolbow said, the drug price negotiation lawsuits are attempting a somewhat novel tactic to bypass the review bars.<\/p>\n

\u201cThe big issue right now that courts are kind of dodging is whether or not a review bar like this can preclude constitutional claims,\u201d she said. \u201cAll of the complaints that have been filed over the drug price negotiation program exclusively raised constitutional claims. They\u2019re doing that because they\u2019re trying to get around the review bars.\u201d<\/p>\n

The arguments, Dolbow said, are weak, and the lawsuits might get tossed out on standing grounds before the courts hear them \u2014 since negotiations haven\u2019t started. But the suits pose a test to the Roberts court over a key Democratic agenda item.<\/p>\n

\u201c[Roberts] has been more inclined than most other justices to say, \u2018hold on, Congress is invading our power,\u201d Trammell said. \u201cAnd he\u2019s been very reluctant to find that Congress has even stripped jurisdiction.\u201d<\/p>\n

That was the case in\u00a0Patchak v. Zinke\u00a0<\/em>(2018), where six of the justices sided with Donald Trump’s interior secretary, Ryan Zinke, to uphold a law directing federal courts to dismiss lawsuits pertaining to a particular tract of land. But Roberts penned a dissent, arguing that the majority had incorrectly viewed the law as a jurisdiction strip.<\/p>\n

\u201cCongress cannot, under the guise of altering federal jurisdiction, dictate the result of a pending proceeding,\u201d Roberts wrote.<\/p>\n

His dissent is now being\u00a0cited<\/a> by\u00a0environmentalists challenging a recent\u00a0debt ceiling law<\/a> provision that required federal agencies to issue permits for the Mountain Valley Pipeline, a natural gas pipeline backed by Sen. Joe Manchin (D-WV) and blocking federal courts \u2014 which have been holding up the project \u2014 from exercising judicial review over the permits.<\/p>\n

\u201cHis first goal, which leads him to sometimes subordinate his own ideological and political priors, is to make sure the court\u2019s power remains untrammeled,\u201d said Moyn. \u201cMany of his seemingly good decisions are really about Roberts joining the liberals to save the court\u2019s reputation so that its power is not diminished. That makes those good decisions look much less glamorous. Because they\u2019re about self-preservation.\u201d<\/p>\n\n \n \n \n

\u201cThe Status Quo Is No Longer Tenable\u201d<\/h2>\n \n

It’s not just the court\u2019s jurisdiction that Roberts has been preciously protecting. He has previously threatened<\/a>\u00a0that Congress\u2019s power to impose financial reporting, gift, and recusal rules on the high court had \u201cnever been tested.\u201d<\/p>\n

Supreme Court justices must comply with long-standing federal ethics laws mandating financial disclosures, though the court does not have its own ethics code governing issues like standards for recusal.<\/p>\n

In 2011, following reports that conservative justices had attended Republican fundraisers and strategy sessions, Democrats\u00a0introduced<\/a>\u00a0legislation to impose a code of ethics on the court. Roberts shot back in his\u00a0annual report<\/a>\u00a0that year, warning that while Supreme Court justices voluntarily comply with the ethics rules that cover the rest of the federal judiciary, the high court \u201chas never addressed whether Congress may impose those requirements on the Supreme Court.\u201d<\/p>\n

Roberts has declined, meanwhile, to enforce federal ethics laws against the justices or impose an internal code of ethics on the court.<\/p>\n

Now, as Senate Majority Leader Chuck Schumer (D-NY) promises to hold a vote this year on a Supreme Court ethics code and House Democrats have reintroduced legislation to create term limits for the federal judiciary, they could be setting up for a battle with Roberts.<\/p>\n

In April, following\u00a0bombshell<\/a>\u00a0reporting<\/a>\u00a0by\u00a0ProPublica<\/em> that Justice Clarence Thomas had for two decades accepted undisclosed gifts from billionaire GOP megadonor Harlan Crow, Senate Judiciary Committee Chairman Dick Durbin (D-IL) asked<\/a> Roberts\u00a0to testify before the Senate about Supreme Court ethics.<\/p>\n

The court\u2019s ongoing ethical lapses \u201cwere already apparent back in 2011, and the court\u2019s decade-long failure to address them has contributed to a crisis of public confidence,\u201d Durbin wrote in a letter to Roberts. \u201cThe status quo is no longer tenable.\u201d<\/p>\n

Roberts declined to appear,\u00a0writing<\/a>\u00a0in response that \u201ctestimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.\u201d<\/p>\n

Rather than conducting his own, internal ethics investigation into the Thomas revelations,\u00a0he punted<\/a> the matter to the Judicial Conference, a policymaking body made up of largely Republican-appointed federal judges. That body referred the matter to the Committee on Financial Disclosure \u2014 whose members\u2019 identities were previously<\/a>\u00a0kept secret<\/a>.<\/p>\n

It is not clear that the Supreme Court would necessarily respect the conclusions of the Financial Disclosure Committee, since it is made up of lower court judges.<\/p>\n

Reports have continued to flood in about ethics violations or the appearance of corruption on the court. Justice Samuel Alito\u00a0accepted<\/a>\u00a0an undisclosed private jet flight from conservative hedge fund billionaire Paul Singer and did not recuse himself from cases involving Singer\u2019s business. Alito\u2019s wife\u00a0leased land<\/a>\u00a0to a major oil and gas company for drilling, while Alito voted to scale back the Clean Water Act with the backing of fossil fuel interests. Conservative legal activist Leonard Leo, who reportedly organized Alito\u2019s ride on Singer\u2019s plane, separately\u00a0steered consulting payments<\/a> to Thomas\u2019s wife Ginni.<\/p>\n

The head of a major law firm with a Supreme Court practice\u00a0bought property<\/a>\u00a0from Justice Neil Gorsuch just nine days after he was confirmed by the Senate \u2014 and Gorsuch did not disclose the buyer. Sotomayor\u00a0earned millions<\/a>\u00a0in book royalties from Penguin Random House but declined to recuse herself from cases involving the publisher. Lawyers with business before the court\u00a0paid<\/a> a Thomas aide via Venmo in connection to Thomas\u2019s Christmas party. The list goes on.<\/p>\n

Meanwhile, the court has struck down key\u00a0components<\/a>\u00a0of the Biden agenda, most recently his student debt cancellation plan, using procedural gimmicks and ignoring\u00a0glaring issues<\/a>\u00a0like\u00a0plaintiffs\u2019 lack<\/a>\u00a0of standing. Last year, the Supreme Court overturned\u00a0Roe v. Wade<\/em>, eliminating federal protections for abortion rights and allowing states to once again ban the procedure.<\/p>\n

In response to the mounting revelations and increasingly right-wing rulings, top Senate Democrats announced<\/a>\u00a0that the Judiciary Committee would hold a vote on Supreme Court ethics legislation on July 20. Their bill requires the high court to adopt and make public a code of conduct, establishes new gift and travel disclosure requirements, creates rules for recusal, and empowers a panel of lower court judges to review ethics complaints.<\/p>\n

Rep. Ro Khanna (D-CA) has reintroduced legislation<\/a> to impose eighteen-year term limits on Supreme Court justices and allow presidents to appoint two justices per term.<\/p>\n

\u201cOur Founding Fathers intended for lifetime appointments to ensure impartiality,\u201d Khanna\u00a0said<\/a>\u00a0in a statement last month. \u201cThe [student debt] decision today demonstrates how justices have become partisan and out of step with the American public.\u201d<\/p>\n

For his part, Biden seems unwilling to do anything. While Biden recently\u00a0acknowledged<\/a>\u00a0that the Roberts court \u201cis not a normal court,\u201d he opposed calls for Democrats to add seats to the Supreme Court, arguing it would \u201cpoliticize it maybe forever in a way that is not healthy.”<\/p>\n\n \n \n \n\n \n \n

You can subscribe to David Sirota\u2019s investigative journalism project, the\u00a0Lever<\/i>, here<\/a>.<\/p>\n\n\n\n

This post was originally published on Jacobin<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

In the early 1980s, a young John Roberts was working as a lawyer in President Ronald Reagan\u2019s administration, crafting legal and constitutional arguments in favor of Republican efforts to strip power from a liberal judiciary that threatened their agenda. Roberts argued in a 1983 memo defending term limits for federal judges that the \u201cfederal judiciary [\u2026]<\/p>\n","protected":false},"author":1641,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1138363"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/1641"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=1138363"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1138363\/revisions"}],"predecessor-version":[{"id":1138364,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1138363\/revisions\/1138364"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=1138363"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=1138363"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=1138363"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}