By Robert Weiner and Tomas Alves
Chief Justice John Roberts has managed his reputation as a "judicial minimalist", or a judge focused on upholding the legal status quo, since 2005. However, empowered by the conservative bent of the current Supreme Court, given his most recent high-profile cases, Roberts' legacy will be that his main precedent is violating precedents. Overturning everything from federal regulatory power, and abortion rights to granting presidential immunity from prosecution and a court rife with corruption, the new Court reforms pursued by the Biden administration is crucial.
The newly discussed reforms proposed by President Joe Biden include an enforceable code of ethics, term limits for Supreme Court Justices and even a constitutional amendment to abolish legal immunity for the President and other high-ranking federal officials. These actions comprise a necessitated rebuke of recent unprecedented rulings and ethics scandals that aim to reel in Roberts and his rogue court.
But, the reforms needed to put a check on the court's radical use of their powers face a high-water mark for passage. Any legislative change would need to surpass a Republican-controlled Congress, a slim Democratically-controlled Senate and the insurmountable approval of the state legislatures for an amendment. Yet, the court's brazen actions have forced Biden's hand.
On July 1st, the conservative supermajority demonstrated this disregard for precedent to rule that Presidents are "conclusively and preclusively" immune from prosecution on all official acts. Basically, Roberts and the conservative bloc took the opportunity to insulate a President from any legal checks on their actions. To which, serves as a glaring example of conservative activism and the weaponization of the court that highlights its partisan poisoning.
In her dissent, Justice Sonia Sotomayor perhaps said it best, "In every use of official power, the President is now a king above the law," as a preview of the legal challenges that Presidents now face because of this ruling: close to none.
Yet, the ruling in Trump v. United States (2024) was precluded by a swath of examples of the Roberts Court's disinterest to uphold precedent. Take just the week before, where the Supreme Court issued rulings on the highly anticipated Loper Bright vs Raimondo (2024) decision on the ability of the federal government to regulate important issues, otherwise upheld by the Chevron Doctrine.
As a pillar of the Executive Branch, the Chevron Doctrine has been upheld for forty years to allow federal agencies the wiggle room necessary to operate under ambiguous laws giving them discretion to interpret the law's intent.
Unsurprisingly, Roberts and the conservative court ruled in a polarized decision to abandon this precedent. In a dissenting opinion, Justice Elena Kagan said the decision "gives courts control over matters they know nothing about" in her emphatic disagreement. For a statute regularly used to enforce any kind of regulation in the federal government, judicial activism was once again the arsonist.
In another blatant reversal of precedent, the court also recently ruled that gifts accepted after government action are not considered bribery thus overturning the conviction of Mayor Snyder of Portage, Indiana. This drew outrage from Justice Ketanji Brown Jackson who said the decision was "only one today's Court could love". Because for every other federal court, nobody gets tips for government business or casework and is not prosecuted for corruption, something that Roberts and his allies chose to overlook.
But as unsurprising as these decisions are, the barrage of unprecedented rulings is only possible with the perverse practice of judge shopping. Fast-tracking litigation through the federal judiciary up to a Supreme Court ready to exercise its conservative supermajority is something that the Chief Justice is not in a hurry to regulate and one that conservative litigants love to take advantage of.
In March, when Chief Justice Roberts and the Judicial Conference had issued new guidance to the federal judiciary to ensure judges received cases at random to oppose judge shopping, this was immediately followed up by a Mitch McConnell letter to courts around the country to ignore the new guidelines. The Judicial Conference's response: general unwillingness to enforce their implementation. Clearly sending a message that for Roberts, conservative activism is prioritized over the maintenance of precedent.
Defenders of the Judicial Conference might say that the body lacks any oversight in enforcing these guidelines but Roberts certainly plays a role in launching investigations and referring perpetrators for impeachments. Yet, as Roberts claims to defer political matters to Congress and out of the judiciary, he protects conservative perpetrators from accountability. A classic tactic from the conservative bloc's playbook: make everyone else follow the rules that they can absolve themselves from.
In his failure to uphold the legal status quo and cement judicial best practice, Roberts' indifference to act at a critical flashpoint in his tenure shall lead the public to remember him as the man who violated countless precedents to endanger and further polarize the American public. Considering Roberts' unwillingness to adhere to longstanding judicial precedents at the cost of America's stability, the President and his democratic allies have no choice but to intervene.
Robert Weiner was a spokesman in the Clinton and George W. Bush White Houses. He was communications director of the House Government Operations Committee, and senior aide to Congressman John Conyers and Charles Rangel, Reps. Claude Pepper and Ed Koch, Sen. Ted Kennedy, and Four-Star General/ Drug Czar Barry McCaffrey.
Tomas Alves is a policy analyst, research coordinator, and Op-Ed writer working at Robert Weiner Associates News and Solutions for Change. Tomas was also a Senior Staff Writer for The Highlander Newspaper at the University of California, Riverside.
