Flight or Fight

John Roberts, the judiciary, and a new champion Justice for justice

Throughout the animal kingdom, there is an innate urge to defend one’s turf. My sister’s dog Finn, for instance (pictured below), adheres to this principle. He pees to mark his territory. He barks when strangers come to the front porch. He chases squirrels in the backyard.

But there is one prominent mammal that lacks this basic zoological behavior. I am of course talking about Supreme Court Chief Justice John Roberts.

Roberts’ turf is the courts. But since the ascension of Donald Tromp,* he has consistently undermined his fellow judges and ceded swaths of his turf to a predatory Executive Branch.

[*After calling the president “Tromp” in a previous substack post, a couple people told me it was distracting, and that I should either desist or explain myself. So, apologies for this aside: The president derives a great deal of power from his moniker and its branding. Viscerally, I can’t stand seeing his name or visage. This is surely a near-meaningless gesture on my part, but to say his name feels like giving him power. Others refer to him as Drumpf (his family name back in the old country), or Tr*mp, or Cheeto, or — in a nod to Lord Voldemort — “He-Who-Must-Not-Be-Named.” Maureen Dowd calls him Donny. President Biden liked to say “The Former Guy.” I go with Tromp because it so perfectly describes him: He tromps on our rights, on immigrants, on democracy and decency… I could go on and on.]

On the first day of Tromp’s second term, he issued an executive order doing away with birthright citizenship: the century-old principle that, if you are born in the United States, you are a citizen of the United States. District judges — the folks ostensibly on John Roberts’ team — were quick to object. Judge John Coughenour, a Reagan appointee in Seattle, said “I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order.”

In Maryland, Judge Deborah Boardman said “no court in the country has ever endorsed the president’s interpretation” of the 14^th Amendment. “This court will not be the first.” In Massachusetts, Judge Leo Sorokin said the arguments of Tromp’s lawyers reflected “a serious misunderstanding at best — and a conscious flouting at worst — of the judicial process and the rule of law.” A George W. Bush appointee, New Hampshire’s Judge Joseph Laplante, concurred with his colleagues that stripping citizenship from the case’s plaintiffs would cause irreparable harm. And all four judges imposed nationwide injunctions against Tromp’s executive order.

One might think that Roberts would support efforts to maintain the judiciary as a co-equal branch of government; one might think he’d be alarmed by various Tromp officials suggesting that they simply ignore court rulings, or threatening to impeach judges that challenge the White House. But last month, Roberts’ court rolled over, paws in the air. They ruled 6-3 that Coughenour, Boardman, Sorokin, Laplante, and the appeals courts that concurred with them had it wrong; that district judges should not have the ability to protect the Constitution through issuing nationwide injunctions.

Indeed, every step of the way, when presented with opportunities to maintain the power of the judiciary, Roberts and his five allies on the court have chosen fealty to Tromp over fidelity to legal precedent. Lower courts — backed up by appellate judges — had put the brakes on Tromp plans to eviscerate government agencies through mass firings of workers; they had blocked attempts to end temporary humanitarian protection for hundreds of thousands of Venezuelan, Cuban, Haitian and Nicaraguan immigrants. But again and again, (and sometimes by emergency decree with no explanation) the high court reversed their brethren magistrates.

This is no surprise from Sam Alito, Neil Gorsuch, or Clarence Thomas, who are fully indoctrinated members of the Tromp cult. Or from Brett Kavanaugh, who thinks Nixon got a bum deal, and whose advocacy for increased presidential power was a major issue during his nomination hearings. Earlier this year, people (perhaps influenced by her vague resemblance to Amy Adams?) were floating the notion that Amy Coney Barrett might be another David Souter — a Republican appointee who’d turn liberal. Her majority opinion in the birthright citizenship case should disperse those daydreams for good. And as for Roberts himself, it was clear at least from last summer — when he strong-armed through his opinion in Trump v. United States, giving Donald broad immunity for crimes committed while in office — that he had little interest in curbing a rogue presidency.

With all these lickspittle lackeys ceding power to Tromp, it is no wonder that Judge Coughenour said this in his courtroom as he made his decision in the birthright citizenship case. Reminder: he was appointed to the bench by Ronald Reagan!

“It has become ever more apparent that, to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain… There are moments in the world’s history when people look back and ask where were the lawyers? Where were the judges? In these moments the law becomes especially vulnerable. I refuse to let that beacon go dark today.”

Indeed, when History looks back on this era (if we get to the other side of this era with our current anthropomorphized conception of “History” intact), it may well ask “Where were the judges?” Which brings us to the raison d’être of this substack: to highlight the recent legal arguments of Justice Ketanji Brown Jackson, who is proving to be a sage for the ages: a voice we need now, and one that may serve to regain the judiciary’s turf in the future.

She has used her dissenting opinions to decry the President invoking — in her words — “a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison.” And regarding the Supreme Court’s use of a short, unsigned “emergency” order to “hand DOGE staffers the highly sensitive data of millions of Americans,” she writes: “Once again, this Court dons its emergency-responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them… It seems the Court has truly lost its moorings.”

She then proceeds to illustrate that, while Roberts may not care about defending their territory, she is ready to do so:

“To accept [the Administration’s] line of argument sends a troubling message: that this Court will allow departures from our stated legal standards and the basic norms of our judicial system (such as respect for lower court rulings and equal justice under law) for certain litigants. It says, in essence, that although other stay applicants must point to more than the annoyance of compliance with lower court orders they don’t like, the Government can approach the courtroom bar with nothing more than that and obtain relief from this Court nevertheless. It is particularly startling to think that grants of relief in these circumstances might be (unintentionally) conveying not only preferential treatment for the Government but also a willingness to undercut both our lower court colleagues’ well-reasoned interim judgments and the well-established constraints of law that they are in the process of enforcing.”

In one of the two emergency petitions in which Roberts et al approved the mass-firings of government employees, Justice Jackson wrote:

“Consider the harms to democracy, too, if it turns out that the plaintiffs and the lower courts are right that the President is unilaterally changing the structure of the Federal Government. What one person (or President) might call bureaucratic bloat is a farmer's prospect for a healthy crop, a coal miner's chance to breathe free from black lung, or a preschooler's opportunity to learn in a safe environment... With scant justification, the majority permits the immediate and potentially devastating aggrandizement of one branch (the Executive) at the expense of another (Congress), and once again leaves the People paying the price for its reckless emergency-docket determinations.”

And finally, on the birthright citizenship case:

“It is important to recognize that the Executive's bid to vanquish so-called “universal injunctions” is at bottom a request for this Court's permission to engage in unlawful behavior. When the Government says ‘do not allow the lower courts to enjoin executive action universally as remedy for unconstitutional conduct,’ what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution ― please allow this. That is some solicitation…

“Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law — full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law's protection become subject to the Executive's whims instead…

“The majority's ruling… is also profoundly dangerous since it gives the Executive the go-ahead to sometimes wield the kind of unchecked arbitrary power the Founders crafted our Constitution to eradicate. The very institution our founding charter charges with the duty to ensure universal adherence to the law now requires judges to shrug and turn their backs to intermittent lawlessness. With deep disillusionment, I dissent.”

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And if that was not enough Supreme Court stuff for you today, here’s some additional reading that interested me:

• Judge Laplante has issued a new injunction against the attempt to end birthright citizenship, this time in response to a class-action suit.

• An analysis, by my friend Carolyn Shapiro, of the flaws in Justice Barrett’s majority opinion in the birthright citizenship case

• Isabela Dias, in Mother Jones, shows how “The Plot Against Birthright Citizenship” has been in the works for a long time.

• The New York Times collected the blunt language of dozens of judges — including Tromp appointees — who are ruling against his administration.