The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Roberts Rorschach Test
Who is defying the Courts?
John Roberts fancies himself as a very smart person. The Chief's confidence and erudition flows through his prose. Except when it doesn't. His 2024 year-end report has proven to be something of a Rorschach Test. He wrote "Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected." Who was he talking about?
In the Washington Post, Ruth Marcus wrote that it was clearly J.D. Vance, primarily based on some free-flowing comments the Senate candidate made in 2021. The Wall Street Journal Editorial page wrote that Roberts was talking about Joe Biden:
The Chief mentioned no names, but we can, and look no further than President Biden. When the High Court blocked his $430 billion student loan forgiveness plan, the President said "the Supreme Court blocked it, but that didn't stop me." He boasted of forgiving even more debt despite lacking authority from Congress.
Mr. Biden also boasted of defying the Court's warning on his illegal eviction moratorium. He admitted that "the bulk of the constitutional scholarship says that it's not likely to pass constitutional muster." But "by the time it gets litigated, it will probably give some additional time while we're getting that $45 billion out to people who are, in fact, behind in the rent and don't have the money."
Or could it be the forty-six Senate Democrats who urged President Biden to flout court orders, and certify the Equal Rights Amendment? Or was it Senator Ron Wyden of Oregon who called on the FDA to ignore the mifepristone decision?
If the Texas judge, Matthew Kacsmaryk, makes that decision, Wyden said, "President Biden and the FDA must ignore it."
Saying he'd never called for ignoring a court ruling before, Wyden said the harm that would be caused by this decision would be irreparable.
"The FDA should go on just as it has for the last 23 years since it first approved mifepristone," Wyden said. "The FDA needs to keep this medication on the market without interruption regardless of what the ruling says. Doctors and pharmacies should go about their jobs like nothing has changed."
Who was Roberts talking about? A bunch of Democrats who actually said that specific court rulings should be disregarded? Or a Senate candidate who speculated on a podcast about what happens in a hypothetical constitutional crisis. Me thinks there is a bit too much of both-sidesism?
Sometimes when I write a post, and make a subtle reference, I think it will be clear who I am referring to. As readers will attest, those references often fall flat, or create confusion. The Chief should know better, and not take vague swipes at unnamed politicians. People on both sides will simply use the Chief's attacks to support their political priors.
Let's try this with a reference everyone should get: The way to stop politicizing the Court is to stop politicizing the Court.
