The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chief Justice Roberts, The Judicial Supremacist in Jarkesy
The Chief Justice wavers on many issues, but never in returning power to the federal judiciary.
Jarksey continues a trend by the Chief Justice: the transfer of power from the executive and legislative branches to the judiciary. From Stern v. Marshall to Loper Bright, Chief Justice Roberts rejects effort to deprive the federal courts of its powers to decide cases. Justice Sotomayor makes this point in her dissent:
Beyond the majority's legal errors, its ruling reveals a far more fundamental problem: This Court's repeated failure to appreciate that its decisions can threaten the separation of powers. Here, that threat comes from the Court's mistaken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary.
Indeed, Sotomayor pokes Roberts's much-vaunted "umpire" analogy:
The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government. Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.
On many issues, Chief Justice Roberts's jurisprudence is situational, and depends on a a confluence of many factors. But with regard to judicial independence, Roberts is dogmatic. In Jarkesy, Roberts extended this philosophy to the context of the Seventh Amendment.
