Roberts’ Rules

Checks & Balances is a newsletter of the Society for the Rule of Law Institute

By John Vecchione

The Roberts’ Court has come under withering fire from both the Left and the Right. On the Left calls for Court packing - the end of the Supreme Court as a defender of unpopular liberties - has gone mainstream. Term limits for Justices are also routinely proposed when such proposals became mainstream during the long tenure of Justices Brennan, Marshall, and Ginsburg. One of the more solid critiques of the Court from the Left comes from the New Republic. Under this theory when the Roberts’ Court allows the President to control the personnel that run the Executive Branch it is weakening Congress, presumably unconstitutionally.

From the Right there are the usual Trumpist harumphers who believe any deviation from the President’s agenda is treason. But a more sophisticated and longstanding complaint of the Right—that has been standard from the Right since Roberts saved Obamacare by calling the regulation a “tax” in NFIB v. Sebellius—is that his decisions are political and that his political instincts are poor. The always interesting and insightful Professor Josh Blackman has the best take on this argument. He compares the outcomes of Trump v. Slaughter that overrode Humphrey’s Executor with Trump v. Cook that upheld the Constitutionality of insulating the Federal Reserve officers from firing except for cause.

With all of this incoming fire, some of it from the President of the United States both in live television harangues after Learning Resources v. Trump (the tariff case) and endless “Truth Social” posts, it is no wonder that the Court is at one of its lowest levels of popularity. None of this is deserved. The Chief has corralled a shifting cast of characters for 20 years. The current court is the most originalist and textualist in the life of anyone now living. When Justice Scalia joined the Court over 40 years ago he was largely a voice crying in the wilderness (loudly). Now as the Gorsuch concurrence in Learning Resources made stark, there are lively disputes on the nature of textualism, originalism and the Constitution between adherents of those modes of legal analysis.

And that is what is going on here that is causing all the sturm und drang over the Supreme Court. A long term project to excise anti-constitutional rulings of the progressive era, roughly from the late 1920’s to the 1980’s, is now bearing fruit. Those who championed those rulings like Humphrey’s Executor and Chevron v. E.P.A. are naturally unhappy with the Court’s current project. But just as champions of Plessy v. Ferguson put “Impeach Earl Warren” bumper stickers on their cars, it tells us nothing about the rightness or wrongness of the current court’s direction. On the Right, whenever anyone disagrees with Thomas or Gorsuch they are seen as waffling dilettantes of originalism.

But that is a foolish way to look at the Court. In two cases this term Thomas was way off the mark. His view of the tariff power completely dismissed the textual clarity that that power is in Congress and was easily the worst opinion of his long career. Similarly, in Trump v. Barbara, the birthright citizenship case, it became Holy Originalist Writ that a view of citizenship that had never been practiced since the 14^th Amendment was passed, and wholly rejected by Congress since the 40’s, could be changed by an Executive Order in one day. That is not how the Constitution works. Naturalization is in Congress’ hands textually and Thomas’ dissent in that case was also not as good as Kavanaugh’s concurrence.

What Roberts has been aiming at over his entire career is a Constitution where the President controls the executive branch and Congress controls law and policy. But he does want to do things all at once. This is why in both Loper Bright v. Raimondo and in Trump v. Slaughter he waited until the doctrines to be overruled had been so eviscerated that it was difficult for practitioners and district courts to know what was left of them. His position in Dobbs v. Jackson, overruled Roe v. Wade is of a piece. He did not believe Roe had been eviscerated enough yet. That may have been wrong but it is not disqualifying.

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Something that has not been said before to my knowledge but should be discussed is that a Supreme Court that is faithful to the Constitution rather than the zeitgeist is going to be more unpopular than one that does the opposite. The Supreme Court is a counter-majoritarian institution by design. The Roberts’ Court has revivified the right to self-defense that was moribund in previous courts. It has returned abortion to the legislatures where it was for all of our history until progressivism could no longer tolerate that.

It has been a champion of free speech, much of it unpopular, in the face of powerful political forces. Religious minorities with now unpopular views on marriage, contraception and sex altering technology have repeatedly found a refuge in the Roberts’ Court. The jury right for common law claims has been revived in SEC v. Jarkesy putting Americans before a jury of their peers and not a jury of bureaucrats. None of this is popular as demonstrated by the repeated assault on all these rights by majorities. All of it is necessary for Constitutional government and a credit to Roberts and his Court.

John Vecchione is a Senior Litigation Counsel for the non-profit New Civil Liberties Alliance.

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^{The Society for the Rule of Law Institute publishes guest essays to foster thoughtful discussion on issues relating to the Constitution and the Rule of Law. The views expressed in this article are those of the author and do not necessarily reflect the views of the Society for the Rule of Law Institute.}