Pity poor John Roberts. No, he’s not corrupt or compromised. He is simply a man who has found himself at a pivotal time and place in a position of great responsibility for which he is utterly unsuited. He’s not a dumb man. He is, in fact, a very smart man – Hugh Hewitt knew him personally in the Reagan administration and testifies to that. I have no doubt it’s true. I know many smart people who have similar flaws. As objectively intelligent as John Roberts is, he is unwise, and he is endangering the institution he wants to preserve because he does not understand human nature or the times he finds himself in.
Frankly, I’ll take wisdom over raw intellect any day of the week.
If he had the capacity to lead that he so manifestly lacks, John Roberts could save his institution with decisive and bold action. But that’s not who he is. Understand what John Roberts wants. He is an institutionalist who has always wanted to protect the judiciary branch. He wants it to be a fully co-equal branch that is respected by all. But the very actions he has chosen to take – or not to take – in response to the current crisis of out-of-control subordinate courts are guaranteeing that it will fall.
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.
You know, kind of like what’s happening now.
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. You non-lawyers need to understand that all these temporary restraining orders and injunctions and so forth are insane. This is not how law is done, either procedurally or substantively. I did litigation for 30 years, including in federal courts (up to arguing in front of the Ninth Circuit), and never saw anything remotely like these antics. So, realize that this is abnormal.
Abnormal times call for abnormal responses, but that’s not how John Roberts or his ilk work. Remember, he’s a Bushie, the kind of soft Republican who sees his job less as fixing our broken government than managing its gentlemanly decline. We’ve largely booted them out of elective office, but Roberts has his seat for life. His advocation is protecting his institution. He wants the judiciary to be held in respect and obeyed, but he doesn’t want to do the hard, stern work of disciplining his underlings that makes that possible.
John Roberts wants the normal appellate procedures to apply. He’s hoping that if he shuts his eyes and pretends that everything is normal, he’ll open them and it will all be normal again. This was the main takeaway from his unbelievably tone-deaf response to Trump’s, Musk’s, and others’ frustration-driven talk about impeachment. Now, Roberts was right in theory about what he said, but what we’re facing is not theory but practice. Put aside the practical reality that we’re not going to be able to impeach anybody, and don’t fall for the Internet amateur ambulance chasers who think there’s one neat trick where we can somehow get rid of judges by a majority vote because of “bad behavior.” That is a reason to get rid of them, not a means. The means is impeachment, and that takes 67 senators. That’s never going to happen so we should stop talking about it. They would wear a failed impeachment like Tim Walz would have worn his war medals if he had shown up to earn any. Haven’t we learned not to engage in failure theater?
In normal times, the response to a judge over one dumb decision is the appellate process. But these are not normal times. These are not one dumb decision. These are dozens of dumb decisions. 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. To that end, they have sought to wrap him up in a web of orders and injunctions that will prevent him from doing the things he was elected to do. If it was one case or ten cases, you could wait months and months for the appellate process to grind through. Eventually, Trump administration will win most of these cases through the appellate process because they’re procedurally and substantively ridiculous. But the purpose of these judicial antics is not to fulfill the letter of the law, but to create friction that improperly prevents political actions that the executive has the right to take. In other words, Donald Trump may live in the White House, but he can’t actually be President, thereby disenfranchising the people who elected him.
So, we have a system that is not being used normally and that is not being used for a normal purpose. But Chief Justice Roberts, in his lack of wisdom, refuses to see that abnormal actions sometimes require abnormal responses. As I have said before, he will never be able to normal the abnormal back to normality.
He thinks he can force normality back onto the judiciary by simply pretending the abnormality doesn’t exist and that everything is hunky-dory. He can’t. He must force normality back on the judiciary by addressing the abnormality directly. That means he has to take abnormal actions in response. Procedurally, he 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. The Supreme Court only takes 50 or so cases a year. With over 100 lawsuits against the Trump administration as part of this lawfare campaign, that workload no longer works.
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. If an order issues and no one enforces it, is it really an order?
John Roberts is running out of friends. The leftists hate him. They’ll tolerate him as long as he’s useful, but he’s not going to find any political support on the Democrat side when they come back into power. 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 (like on some issue that involves command of the military or protecting America from foreign terrorists and gangsters) and at the height of his political power (like on some issue where he’s on the 80% side of an 80/20 split). He will resist from strength, while the judiciary fulminates impotently from weakness.
Lots of people are asking why Trump is not defying the courts now. It’s because he doesn’t have to. The Department of Justice under Pam Bondi is doing an incredible job of litigating these cases – I’ve read a lot of briefs over the years, and the DOJ lawyers are writing terrific ones. The Administration is passively aggressively obeying these orders, being very picayune and literal in its interpretation of them, but it is not outright defying them. Nor should it. Outright defiance of a court order is another 80/20 issue, but 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.
Yet.
But John Roberts better understands 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.
Sadly, so far, John Roberts has shown no indication that he is wise enough to put a stop to this runaway train of out-of-control judicial election interference. He believes he’s acting to protect the judicial branch. He is not. His George Costanza-like gut instinct is always wrong. He would be better off interrogating his gut and then doing precisely the opposite.
A decision point is coming. Decisive action by the Chief Justice could save the judicial branch by restoring the judicial modesty that preserves the respect of the other branches. If only we could be confident that John Roberts was wise enough to do it.
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