The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
J.D. Vance to Chief Justice Roberts: The Judiciary Must Check Its Own Excesses
Did Roberts really think he could lob bombs at the elected branches and face nothing in return?
Vice President J.D. Vance sat down for an interview with Ross Douthat. They cover much ground, but I wanted to flag this exchange concerning Chief Justice Roberts:
Let me just make one final philosophical point here. I worry that unless the Supreme Court steps in here, or unless the District Courts exercise a little bit more discretion, we are running into a real conflict between two important principles in the United States.
Principle 1 of course is that courts interpret the law. Principle 2 is that the American people decide how they're governed. That's the fundamental small-d democratic principle that's at the heart of the American project. I think that you are seeing, and I know this is inflammatory, but I think you are seeing an effort by the courts to quite literally overturn the will of the American people. To be clear, it's not most courts. But I saw an interview with Chief Justice Roberts recently where he said the role of the court is to check the excesses of the executive. I thought that was a profoundly wrong sentiment. That's one-half of his job. The other half of his job is to check the excesses of his own branch. You cannot have a country where the American people keep on electing immigration enforcement and the courts tell the American people they're not allowed to have what they voted for. That's where we are right now.
We're going to keep working it through the immigration court process, through the Supreme Court as much as possible.
Vance is exactly right.
I think the Chief Justice largely lives in a bubble where everyone is afraid to challenge him. He sees himself as a singular force of good to save the rule of law. In Roberts's mind, he can take a shot at the incoming Vice President in his end-of-year address, and everyone will simply submit to his will. No. Vance is fighting back. Roberts thinks he can lecture the President that no judge, even members of the Supreme Court can be impeached; we the people simply have to take it. No. Vance is fighting back.
And, I think, lower court judges are starting to fight back as well. Judge Ho made this same point in his concurrence yesterday, which subtly responded to Chief Justice Roberts:
It is not the role of the judiciary to check the excesses of the other branches, any more than it's our role to check the excesses of any other American citizen. Judges do not roam the countryside looking for opportunities to chastise government officials for their mistakes.
Yet Roberts does exactly that. Every action has an equal and opposite reaction.
There is a storm brewing on the horizon, and I don't think the Chief quite sees it. As I will explain in a forthcoming essay, Roberts's two decades on the bench have rendered him utterly unqualified to deal with what lies ahead. The arc from NFIB to AARP does not bode well for the future. Here is a preview:
It is often repeated that we have three, co-equal branches of government. But that simply isn't true. Alexander Hamilton described the judiciary as the "least dangerous branch." Unlike the Congress, which has the power of the "purse," and the President who wields the power of the "sword," the courts have "merely judgment." Yet, it has been deeply ingrained in our national consciousness that the foundational role of the courts is to balance the power of the elected branches. Indeed, Chief Justice John Roberts boasted that the courts must "check the excesses of Congress or the executive." But who will check the excesses of the judiciary? The greatest check on the courts can only be the widely held belief that the Court is not ruling based on politics. But if people believe the judiciary is simply a mediator that weighs political compromise, then the courts cannot long endure.
Roberts's colleagues should, sooner rather than later, cut the tether and listen to Justices Alito and Thomas. These national treasures should not retire, as they are the only ones speaking sense.
