The Chief Justice, The Roberts Six, & The Path To Tyranny
In 1788, James Madison wrote in The Federalist Paper, No: 47:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
This used to be uncontroversial.
But then the “unitary executive” theory, formerly a fringe idea, was all but adopted by the Supreme Court’s Republican-appointed majority, led by Chief Justice John Roberts. The theory places all executive branch power solely and unapologetically in the hands of the President.
Now, with a Trump-compliant Congress and the Supreme Court’s “Roberts Six” bending the knee to Trump, our nation is facing an even more dangerous version of “unitary” power – the three government branches are now collapsing toward one all-powerful, Trump-controlled government.
We are approaching the tyranny Madison warned us about.
Until this year, the judiciary had carved out its role as an independent and co-equal branch of government. In 1803, Chief Justice John Marshall in Marbury v. Madison wrote an opinion for the ages that implemented the Constitution’s separation of powers. The opinion established the concept of “judicial review” and empowered the judiciary to be the final voice to interpret the Constitution and federal laws.
But today’s Supreme Court majority, led by Roberts, has walked away from that power by repeatedly deferring to Trump’s wishes, giving him license to bend or break the law, while cases Trump may well ultimately lose slowly move forward.
Last summer, the Roberts Six granted criminal immunity to Presidents for “official acts,” thereby violating a founding principle that no one – not even the President – is above the law. So, it is not surprising that Trump returned to office believing there are no constraints on his power.
In March, Trump announced, “I run the country and the world.” In June, he proclaimed, “He who saves his country does not violate any law.”
The Roberts Six have done almost nothing to contain Trump’s dangerous power grabs, the Constitution and rule of law be damned.
In response, more than 400 cases have been brought against the Trump Administration.
Many courageous lower court judges have challenged Trump’s executive orders and other Administration actions. In return, they have been subject to threats and attacks by Trump, his associates, and MAGA supporters.
Regardless, the judges have not held back.
“This is a path of perfect lawlessness, one that courts cannot condone.” – Fourth Circuit Judge J. Harvie Wilkinson, appointed by President Reagan, regarding the initial failure to return Kilmar Abrego Garcia to the United States.
“As is becoming far too common, we are confronted again with the efforts of the executive branch to set aside the rule of law in pursuit of its goals.” – Fourth Circuit Judge Roger L. Gregory, appointed by President George W. Bush, regarding Trump’s claim that Venezuela has invaded our country.
“I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.” – District Court Judge John C. Coughenour, appointed by Reagan, regarding Trump’s executive order preventing birthright citizenship.
“I have never seen government racial discrimination like this.” – District Court Judge William G. Young, appointed by Reagan, regarding funding cuts for research into health disparities.
(More examples are in this New York Times piece.)
These and many other judges have done their job. Chief Justice Roberts has not. Roberts has failed to stand up for the judiciary’s role in our constitutional system and has all but abandoned the judges who are being attacked.
Meanwhile, the emergency docket – also known as the “shadow docket” – is being used by the Trump Administration to get the Supreme Court to quickly lift lower court injunctions, allowing the Administration to do irreparable damage while cases that the Administration may well ultimately lose are pending.
The Supreme Court has issued 15 “emergency” decisions in 17 shadow docket filings made by the Trump Administration, with the Administration winning all 15 decisions. The Court majority, which is not required to explain their decisions, issued opinions in only three of those cases.
Chief Justice Roberts and his five Republican-appointed colleagues are, in essence, serving as enablers by allowing Trump and his Administration to run roughshod over the law and Constitution.
The Founders fought a Revolution to free us from a king and designed a government they hoped would enable future generations to defend against tyranny.
It is now our turn to live up to their ideals. It is not enough to hope that our institutions prevent the dangerous consolidation of unchecked power. We must make it happen.
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Fred’s Weekly Note appears on Thursdays in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s and other recent newsletters here. And, subscribe for free here and receive your copy each week via email.
