It’s a sad day in America when the chief justice of the U.S. Supreme Court ignores the basic framework of the Constitution he’s supposed to interpret.
That’s what happened on Wednesday, when Chief Justice John Roberts took it upon himself to subtly thumb his nose at President Trump and conservatives during a rare sit-down interview in his hometown of Buffalo, New York. In addition to rebuking calls to impeach activist lower court judges for overstepping the confines of the Constitution, the chief justice had this to say about the subject of “judicial independence”:
In our Constitution … the judiciary is a co-equal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of the president. That innovation doesn’t work if … the judiciary’s not independent. Its job is to, obviously, decide cases, but in the course of that, check the excesses of Congress or of the executive. And that does require a degree of independence.
To quote Vice President J.D. Vance, does John Roberts hear himself?
The chief justice begins by claiming that the judiciary is a “co-equal” branch of government. Then, in the very next breath, he asserts that the courts can “strike down … acts of Congress or acts of the president.”
If the courts can unilaterally “strike down” actions by the legislative and executive it believes to be unlawful or finds unfavorable, as Roberts maintains, then that isn’t “co-equal.” It’s judicial supremacism.
What Roberts is conveying is his apparent belief that the Supreme Court and judicial branch writ large are wholly supreme to the other branches of government. That is, regardless of the will of the people as expressed through their elected representatives, it is judges who have the final say on matters of law and public policy.
While courts play an important role in American society, this is the exact opposite of the system the Founding Fathers established in the Constitution. If anything, the judiciary was viewed by framers like Alexander Hamilton to be the weakest branch, as it lacked “influence over either the sword or the purse” and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
The founders were not shy about sharing their fears of what would occur should the views of judicial supremacists like Roberts become reality.
According to The Heritage Foundation, Anti-Federalist Robert Yates “foresaw the possibility — and warned against the danger — of a Supreme Court with the vast discretion and outsize role often attributed to the Court by many contemporary Americans.” He “feared an expansive version of judicial review that would empower the Court not just to interpret the Constitution but to determine its meaning on the basis of the judges’ own opinions about the spirit of justice.”
“Yates further contended that the Supreme Court would not only be supreme over all other courts, but that it would, in fact, be the supreme power in the government to be created by the Constitution. This supremacy, Yates contended, would follow from the Court’s power of settling for all other political actors the authoritative meaning of the Constitution,” the Heritage report reads. “This authority would render the Supreme Court effectively superior to the other branches of the federal government.”
Thomas Jefferson was also among those to express concerns about the judicial branch amassing virtually unchecked power. In an 1819 letter to Virginia Judge Spencer Roane, the nation’s third president espoused fears that the Constitution would become “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” In other words, Jefferson worried that judges would become so emboldened that they would manipulate the Constitution and law to produce outcomes they find to be personally favorable.
Unfortunately, the founders’ fears have been realized in the form of John Roberts.
During his roughly 20 years as chief justice, Roberts has regularly abandoned all sense of proper jurisprudence. Opting to instead play dress-up as a politician, the Bush appointee’s rulings on high-profile cases often depend on which way the current political winds are blowing rather than what the Constitution and law call for.
The chief justice’s latest remarks are a further indication that he has no intention of stopping the judicial coup taking place in the lower courts or restraining the overreaching power of the Supreme Court. Instead, he will likely continue to advance the notion of judicial supremacy, leaving America’s constitutional order and its people to suffer in the process.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
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