The Emperor Roberts

Surely you remember Chef Justice Roberts. He was the one who taught us about stare decisis. That’s the doctrine that protects us against spasm. It means that the law itself deserves deference and humility; that it is not, at heart, a revolutionary enterprise, but needs to be protected against sudden upset.

That was the message of his confirmation hearing, the one where he piously lectured us about abortion. He promised to lead his court down the middle by the force of his gifts for good sense and suasion. He seemed to imply that whatever he thought, reproductive freedom had filled its space and it would be arrogant and abrupt to try to dislodge it. He made it sound like the humble declaration of someone who thought that the law was a process, that it was not served by a mob of revolutionaries at the gates. I remember thinking that here was a guy you could trust, even if you disagreed about this or that.

The defeat of Roe v. Wade gave the lie to all of this. It turns out that Roberts isn’t much of a leader. We first learned that in the case of Clarence Thomas vs. Goodness. It would appear that you can be a Supreme Court justice and accept the gift of a monster touring bus without incurring the wrath of your boss, even if the bus is the size of a Qatari jet and your boss is Chief Justice John Roberts, Jr. He will continue to smile that tight little smile and issue toothless ethical guidelines for his colleagues. I figure that if you’re in the business of a lawgiving, you ought to lay down the law for your subordinates.

The overturning of Roe was actually led by someone else. The name on the death warrant was Samuel Alito, who came at his target like a vampire bat at dusk, trailing drops of blood back to the cave. But instead of joining the liberal minority, Roberts opted for a tricky, hair-splitting concurrence. In the long run, it will amount to no difference at all. His concurrence agreed with the outcome of the decision.

But it turns out I that I was wrong about his nature and character. Among this week’s rulings was an outrageous decision gutting the authority of lower courts. If you need to know everything there is to know, read Kate Shaw’s round-up in the New York Times. There is so much there, I had to read it twice, and I’m still not sure that I nailed every point.

But the key thing for me is that it was an imperious ruling that puts the Roberts Court in an unprecedented place. Lower courts can no longer issue injunctions that will stop or even pause the lawlessness of this administration. If you thought that the assault against birthright citizenship was so obviously illegal that it should be enjoined by every district judge in America, the Roberts Court has effectively said no, or made it so difficult to block it that it’s exactly the same. Only the Supreme Court can issue such an injunction. With Trump in the White House, we know where that will take us.

So the Imperial Presidency now has a partner in abuse. The Tight Little Smiler turns out to have outsize ambitions that cannot be contained within traditional norms. John Roberts, Jr. wants to be in charge. What should we do with district courts have issued powerful national injunctions for decades? That was then; this is now. Stare decisis is bound for the dung hill of history.