The Corner

Law & the Courts

What Joe Biden Has Done Should Be Too Much Even for John Roberts

Chief Justice John Roberts on Capitol Hill in Washington, D.C., March 9, 2017 (Aaron P. Bernstein/Reuters)

The best defense of John Roberts has always been that, rather than being weak or easily influenced, he comes from a judicial school of thought — popular among conservatives in the 1980s and before — that holds judicial restraint as its highest value. In recent years, many conservatives (including myself) have come to believe that the judicial branch has a strong role to play in enforcing the Constitution as written, as well as in policing the statutory limits that Congress has placed on the executive branch. But, before originalism took over (as it should have), this was not always the case. Indeed, insofar as conservatives were likely to criticize the Supreme Court during the middle of the last century, it was not for coming to the wrong decisions per se, but for being “activist” at the expense of the other branches. Viewed through a certain light, John Roberts’s jurisprudence can be seen as an expression of this older view. Yes, he’s sometimes willing to step in if the question is particularly obvious or the infraction particularly egregious. But, in general, he’d rather exhibit a light touch.

Until recently, it has been possible to square John Roberts’s approach to the eviction moratorium with his general approach to his job. But, as of this week, that is no longer the case. We don’t actually know what Roberts thinks of the statutory question underlying the CDC’s eviction moratorium, because he didn’t write anything explaining himself. Perhaps he thinks that the law allows for the CDC’s actions. Perhaps he thinks that it doesn’t, but that it’s not obvious enough to warrant intervention. Perhaps, like Kavanaugh, he thinks that the law does not allow for the CDC’s actions, but that the Court did not need to get involved immediately given that the order was about to expire. Whatever Roberts thinks, though, and however it intersects with his philosophy, his preference for restraint cannot survive the new position that President Biden has taken, which is to have flatly rejected the court’s opinion, and to have said publicly that, while it expects to lose, it is seeking “the ability to, if we have to appeal, to keep this going for a month — at least — I hope longer.”

This cannot stand. There is restraint, and then there is surrender. As a Supreme Court Justice, let alone as the Chief Justice, it is incumbent upon John Roberts to defend the role of his branch, which, since Marbury v. Madison, has been to adjudicate disputes over the law. By admitting that he is gaming the system, President Biden has thrown down a precedent-smashing gauntlet. If the man who claims that his primary preoccupation is with the reputation of his Court proves unable to stand up to such a challenge, he has no job being a part of it at all.

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