Opinion | The Roberts Court has checkmated the other branches


Chief Justice John Roberts likes to present himself as an institutionalist, concerned with upholding the legacy of the Supreme Court. He has positioned himself as the voice of reason on a court that has swung steadily to the right since he was first confirmed to the role almost two decades ago. But this term, he authored a series of decisions that completely shattered the previous balance of power within the federal system. In opinions that on the surface show deference to Congress and the president, Roberts has managed to consolidate an unprecedented amount of power in the only branch of government that is entirely unelected.

Roberts’ opinions in Loper Bright Enterprises v. Raimondo and Trump v. United States fundamentally reject one of the key premises of the constitutional order. If you’re an American reading this, you likely remember learning in school how the three branches of government — the legislative, executive and judiciary — operate through a separation of powers that distributes different parts of governing among them. A series of checks and balances prevents any one from assuming too much authority over the others.

In the first case, Loper Bright, Roberts has pantomimed a defense of the former principle while completely ignoring the latter. Previously, under the Chevron v. NRDC decision from 1982, courts were instructed to defer to executive branch agencies’ “reasonable interpretation” of imprecise or ambiguous statutes. This precedent was crucial, given the difficulties of drafting perfectly precise statutes, the broad sweep of many laws on the books, and the amount of power Congress has delegated to these agencies to figure out the details. In overturning Chevron, Roberts stripped that deference from agencies like the Environmental Protection Agency and Federal Trade Commission, curtailing their ability to issue regulations and increasing the odds of those standards being challenged in lawsuits.

Roberts claimed the court was returning authority from agency bureaucrats back to the elected members of Congress who write the laws. (Justices Clarence Thomas and Neil Gorsuch went further in their concurring opinions, explicitly claiming that Chevron was a violation of the separation of powers that was now being rectified.) In practice, as MSNBC contributor Steve Vladeck pointed out, there is no realistic way for even the most productive Congress to pass clarifying legislation relating to every detail of every agency’s work. “The reality, then, is that the only transfer of power the Supreme Court accomplished by overruling Chevron is a transfer of power to the courts,” wrote Vladeck, a professor at the University of Texas School of Law. “After all, it is now going to be up to judges to decide what each and every statute agencies enforce means.”

In contrast, Roberts’ opinion in Trump v. United States at first seems to empower the executive branch with its declaration that “official acts” taken within the president’s “core constitutional functions” have absolute immunity from prosecution. But while the decision elevates the president and inoculates the office from accountability, Trump v. U.S. nevertheless siphons power away from the executive branch broadly toward the judiciary. In doing so, Roberts at times treats the presidency as utterly separate from the machinery that acts with the executive’s authority, producing a yawning gap between the office of the president and the rest of the executive branch’s functions.

Bear in mind that federal prosecutors in the cases against Trump are doing so as the enforcement mechanism of the executive branch, acting through the president’s authority. This relationship is why it was absurd for Trump to attempt to cite executive privilege during the Department of Justice’s investigations, as it exists on the same side of the separation of powers as the White House. The immunity decision likewise stressed that the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” And yet that same ruling has bound those officers of the executive from enforcing federal laws at the highest level when the president is acting with the greatest amount of power at his disposal, and thus the greatest opportunities for criminality.

Then there are the acts on the “outer perimeter” of the president’s role where “presumptive immunity” exists, meaning the standard of proof falls on the prosecution, not the defense, to overcome it. Notably, there is no indication in Roberts’ opinion that Congress could overturn this standard by passing laws that strictly delineate what counts as unlawful behavior from the president. I can only assume that Roberts would likely see this as another violation of the separation of powers if it were attempted. Instead, it is again only through the courts that this immunity can be rebuked and a prosecution allowed to proceed.

We are left then with a Congress unable to act as a check on the Supreme Court due to self-imposed restrictions, both on its legislative role via the filibuster and hyperpartisanship, and as part of a similar unhealthy fetishization of the separation of powers that dissuades it from conducting oversight. On the other hand, we have a presidency where it is only the better angels of the officeholder’s nature that prevent tyranny from taking root. Roberts seems confident in the courts’ ability to hold off this fate, but to paraphrase a likely apocryphal quote, I would like to know how many army divisions the justices command.

There is no reason that the courts should have accrued this much power, an imbalance completely antithetical to the role the founders envisioned the third branch playing. It is also ironically a more dangerous form of “lawmaking from the bench” that the conservative legal movement once accused liberals of pursuing. Through its decisions, the Roberts court has gone far beyond what the early adherents of that movement, with its backlash to the liberalism of the Warren court, could have plotted.

It also feels fitting that this is the fate of a campaign that began as a call for judges to follow “originalism” and “textualism” in their decisions. Rather than merely being content to erase their predecessors’ gains, Roberts and his fellow conservatives have now rewritten the Constitution’s words to map out their own power-hungry ideology. In doing so, they have eliminated any check that the other branches might have over them, and deeply imperiled the country in the process.

This article was originally published on MSNBC.com



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