A Flimsy Case That the Supreme Court Has Grown More ‘Imperial’

Georgetown law professor Josh Chafetz, last seen arguing about illegal protests at the homes of Supreme Court justices that “the mob is right, some (but not all!) more aggressive tactics are justified,” writes in the New York Times that the Supreme Court under Chief Justice John Roberts has gone too far in asserting the judicial power at the expense of the elected branches. The real agenda of this column, in line with a much broader effort, is revealed in the conclusion — he wants to delegitimize the Court, disempower it because of its conservative majority, and promote Democrats flouting the Court’s rulings:

We ought to begin talking about the justices the way we talk about other political actors — recognizing that their first name is not Justice and that they, like other politicians, should be identified by their party. We should stop talking about another branch’s potential defiance of a judicial opinion as an attack on “the rule of law” and instead understand it as an attack on rule by judges, one that may (or may not) be a justified response to some act of judicial governance. And those other branches should be more willing — as they have at other moments in American history — to use the tools at their disposal, including cutting the judiciary’s funding, to put the courts in their place.

One must appreciate the scare quotes around “the rule of law.” So, what is the pretext for this project? Chafetz contends: “Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision makers with startling frequency. . . . The result has been a judicial power grab.” One might expect a professor at one of the nation’s leading law schools (sorry, law centers) to place this assertion in some historical context, and to offer either a critique of overarching doctrine or some sort of empirical analysis or overview of the Court’s docket. None is forthcoming.

First, to speak of the Roberts Court in general is to shoot at a moving target. John Roberts became the chief justice in the fall of 2005, and was joined shortly thereafter by Justice Samuel Alito. Only one other current justice (Clarence Thomas) was on the Court at the time. Since then, the Court has seen the death or retirement of the other six (John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer), and their replacement by six newer justices (Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson). It is unquestionably true that some of the departed justices, such as Kennedy and Breyer, took a very broad view of the judicial power, but that has little enough to do with today’s Court or its functional majority.

Second, in order to assess whether the Roberts Court has been somehow more aggressive than usual in asserting the power of the judiciary, one might ask, “Compared to what?” Chafetz doesn’t even bother to argue that the current Court is a worse offender in taking matters out of democratic hands than the Warren, Burger, or Rehnquist Courts. Given the record of the Warren and Burger Courts in particular, it would be ridiculous to make that claim.

Third, there is no attempt to consider the overall record of the Court under Roberts. Chafetz simply cherry-picks three areas in which he dislikes the Court’s decisions. He leaves out some pretty big examples of the Court’s deferring to the political branches:

• Dobbs. The ruling returned abortion to the political process and cut down an entire field of precedents micromanaging state abortion law.
• Obamacare. Roberts himself was instrumental in straining to uphold most of the statute in NFIB v. Sebelius, and in giving the bureaucracy wide latitude to rewrite it in King v. Burwell. In California v. Texas, the Court ruled that the latest challengers did not have standing to sue. In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court upheld a Trump administration rule expanding the moral objections permitted to Obamacare’s contraceptive mandate.
• Cases keeping the courts out of elections and election law. In Rucho v. Common Cause, the Court closed the book on efforts to craft a federal judicial role in preventing partisan gerrymandering in the drawing of legislative districts, while in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court gave states a free hand in deciding what bodies can exercise the legislative power to draw those districts. In Chiafalo v. Washington, the Court declined to disturb a state law binding presidential electors. The Court also conspicuously stayed out of the 2020 presidential election, despite multiple efforts to get it to decide cases arising out of the election. And its regular enforcement of the Purcell principle has limited federal courts from rewriting the rules of an election close to the start of the voting.
• The Establishment Clause. In cases such as The American Legion v. American Humanist Association, the Court has pared back judicial scrutiny of state actions on the theory that they are too entangled with, or too symbolic of, religion. Even in a pair of cases enforcing the free-exercise clause, Bremerton School District and Kennedy v. Bremerton School District, the Court overturned the Lemon v. Kurtzman test that required courts to examine state “entanglement” with religion. Similarly, in Our Lady of Guadalupe School v. Morrissey-Berru, the Court continued its move to keep the courts from intervening in the personnel decisions of religious groups. Even though these latter cases involved overriding political actors, they set clearer rules that limited judicial freelancing.
• Cases upholding administrative actions, particularly in the immigration space. For example, in Biden v. Texas, the Court upheld the Biden administration’s rescission of the “Remain in Mexico” policy; in Trump v. Hawaii, the Court used a deferential standard of review to uphold the Trump “travel ban.”
• Cases limiting the reach of the courts. In United States Agency for International Development v. Alliance for Open Society International, Inc., the Court found that the First Amendment does not protect foreign corporations operating overseas from congressional decisions about funding them. In Franchise Tax Board of California v. Hyatt, it concluded that states cannot be sued in federal court without their consent.

This is even aside from cases where the Roberts Court has taken a minimalist approach to questions of severability or remedies in order to limit the sweep of its own decisions. On the other hand, Chafetz also ignores some of the most notorious examples of the Roberts Court’s expanding the judicial power because the cases involved causes popular with progressives. The most egregious of these, Obergefell v. Hodges, struck down state bans on recognizing same-sex marriage, with Roberts in dissent. In Bostock v. Clayton County, the Court rewrote a federal statute to include provisions that had been stalled in Congress for years, short-circuiting the legislative process. In Boumediene v. Bush, the Court threw out an act of Congress that the Court itself had effectively demanded in prior cases. Each of these escapes Chafetz’s ire.

Fourth, as is characteristic of the legal nihilism that pervades so much liberal and progressive writing on the Court, Chafetz doesn’t meaningfully grapple with the distinction between proper and improper uses of the judicial power. In fact, it matters quite a lot whether the Court is enforcing an explicit textual command or a long-entrenched doctrine derived from the constitutional structure, or whether it is (as in Obergefell) simply making stuff up. For example, Chafetz criticizes the line the Court has drawn in election-law cases between allowing the regulation of direct contributions to candidates and barring the regulation of independent political speech. Yet he doesn’t really try to explain why that’s the wrong rule, or what would be the right one. He complains that the Court was more deferential to state-grand-jury subpoenas of the president in Trump v. Vance than it was to congressional subpoenas in Trump v. Mazars USA, LLP, but apparently without considering the obvious distinction: The powers of Congress are a question of federal law, while the powers of state prosecutors are questions of state law. He complains about the major-questions doctrine, but it is simply a canon of statutory construction that allows the Court to do the ordinary business of deciding when the executive branch has seized powers not granted it by Congress, on a matter where the statute in question doesn’t explicitly empower the agency’s action.

There are certainly fair critiques of Roberts and of the decisions made on his watch. It is impossible to make a coherent whole of the jurisprudence of the Court over the past 17 years, given that it has been produced by shifting and ideologically varied coalitions among 15 different justices. Roberts himself can be faulted for his proceduralist insistence across multiple areas of the law that it is the Court’s job to decide when Congress and the executive branch have done enough of their homework, in terms of a deliberative process, to justify the courts deferring to them. But if you were looking for a serious effort to engage, this isn’t it.