The Chief Justice Must Quell the Mutiny in His Ranks
The judicial resistance to Trump 2.0 is the greatest threat to the rule of law in my lifetime; John Roberts needs to stop it, not condone it.
Thanks to the Tennessee Star (here and here)and Ace of Spades HQ (here and here)!
Chief Justice John Roberts proclaims that criticism of federal judges is off-limits
John Roberts is Chief Justice of the United States, appointed to that post in 2005 by President George W. Bush. By custom, the Chief Justice is the spokesman for the entire federal judiciary. Roberts is regarded as an “institutionalist,” whose primary concern is maintaining the public perception that federal judges are neutral arbiters of the law. Because, as founding father Alexander Hamilton noted in Federalist 78, the unelected judiciary “has no influence over either the sword or the purse,” it depends for its legitimacy solely on the public’s belief that federal judges are impartial, nonpartisan decisionmakers whose decisions reflect the law, not the judges’ personal predilections.
Therefore, Roberts is very sensitive to criticism of federal judges that draws their neutrality into question. In President Trump’s first term, when an Obama-appointed judge in San Francisco, Jon Tigar (son of radical activist Michael Tigar), put the administration’s asylum policy on hold in 2018, President Trump complained about the partisan ruling by “an Obama judge.” President Trump said out loud what most people privately acknowledge: Democrat-appointed judges are often result-oriented liberal activists.
Roberts quickly issued a public statement rebuking President Trump: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Few people were convinced, but assumed Roberts was just “doing his job” by defending the independence of the judiciary and ignoring the glaring abuses of some judges. In President Trump’s second term, after an armed, would-be assassin showed up at Justice Kavanaugh’s home following the leak of the draft opinion in Dobbs, perhaps emboldened by Sen. Chuck Schumer’s threat that the justices “wouldn’t know what hit them” if they overruled Roe v. Wade, Roberts is still defending Obama and Biden judges. (In fairness, Roberts properly condemned Schumer’s threat.)
Roberts said last week that hostility directed in personal terms at judges is “dangerous and it’s got to stop.” Roberts was not directly referring to President Trump, although the President has been vocal about all the bad rulings that have been issued against his policies. Roberts insisted that “Judges around the country work very hard to get it right, and if they don’t, their opinions are subject to criticism.” Roberts went on to say that “The problem sometimes is that the criticism can move from a focus on legal analysis to personalities, and you see … that it’s more directed in a personal way. And that, frankly, can be quite dangerous” (emphasis added). The reality is that not all judges are the same; some, especially Biden and Obama appointees, are engaged in active Resistance against Trump 2.0. Those rogue judges can and should be called out for their lawless rulings. It would be “dangerous” not to.
Roberts has spent his entire professional career inside the Beltway, and it shows. While he is right to be concerned about upholding the integrity and public perception of the judiciary, he would be better advised to get the miscreant lower federal courts in line, starting with the district judges and the court of appeals in D.C. Rogue judges, notably District Judge James Boasberg, are the ones responsible for the public’s declining respect for the judicial branch. They are engaged in a judicial insurrection. In my opinion, Roberts’ defense of those judges is alarmingly tone-deaf.
Rogue judges richly deserve the criticism they receive, and SCOTUS must rein them in
Georgetown law professor Randy Barnett, a respected constitutional law scholar not known for being a MAGA loyalist, posted last week that “District court judges have made themselves a threat to the Republic and the peaceful transfer of power by elections.” UT law professor Glenn Reynolds agreed with Barnett on Instapundit: “If Roberts doesn’t wish to preside over the dissolution of Article III, he needs to do something about the politicization of the judiciary, not complain about the people pointing it out.”
The Federalist roasted Roberts with an article entitled “Roberts Is More Bothered By Trump’s Attacks On Judges Than Judges’ Attacks On The Constitution.” Ouch.
Here are some recent examples:
Judge Boasberg quashed grand jury subpoenas issued in a criminal investigation into Federal Reserve Chair Jerome Powell pursued by U.S. Attorney Jeanine Pirro. The investigation concerned the massive cost overruns in a multi-billion-dollar office renovation project at the central bank. Boasberg cited the familiar dodge of “vindictive prosecution,” ignoring that the subpoenas were issued by a grand jury in connection with an investigation. Powell has not been charged with anything. In criminal cases, the propriety of charges should depend on the facts, not the subjective motive of the prosecutor. It is extremely rare for a federal judge to overrule a grand jury in this manner. To many, Boasberg’s order appeared to be yet-another political ruling by an anti-Trump Obama-appointee.
A Biden-appointee in Massachusetts, Judge Brian Murphy, enjoined the Department of Health and Human Services’ childhood vaccine policy and blocked the replacement of Advisory Committee on Immunization Practices members, both squarely within the purview of the executive branch. Murphy is a scofflaw who has been overturned by both the Supreme Court and the First Circuit in separate deportation cases. Murphy does not try to conceal his antipathy for Trump 2.0. He is a disgrace to the bench.
In the district of D.C., an 82-year-old Reagan appointee whose clerks are presumably in charge, “senior judge” Royce Lamberth, issued a 34-page decision finding that President Trump’s appointment of Kari Lake to head the Voice of America program, and President Trump’s decision to reduce the operations of VOA “to the minimum presence and function required by law”—with concomitant cuts to contractors and agency personnel–were unlawful. Lamberth deemed Trump 2.0’s action to be “arbitrary and capricious.” This is meddling with the policy decisions of the executive branch. Lamberth is out of bounds.
Muslim judge Zahid Quraishi, a Biden-appointee from New Jersey, threw a tantrum, ordering federal prosecutors out of a courtroom because he did not like an advisor to the Attorney General, Alina Habba, and ordering a hearing on who had authority to lead the U.S. Attorney’s office in New Jersey. This is part of the Resistance-by-blue-slip whereby President Trump’s selections for U.S. Attorney are denied Senate confirmation hearings and are unable to serve—a situation that has also occurred in the Eastern District of Virginia, L.A., Nevada, and even Utah! When that happens, the local judges get to appoint the U.S. Attorney! National Review, no fan of President Trump, calls this “A Judicial Coup in Utah.”
The rabidly anti-Trump judge in Minneapolis, Biden-appointee Jeffrey Bryan, who has been harassing federal prosecutors with threats to imprison them over trivial issues such as illegal aliens’ missing shoelaces, has refused to recuse himself, even though his wife works for Minnesota A.G. Keith Ellison and is suing the Trump administration to declare ICE’s Operation Metro Surge to be unlawful.
Despite two Supreme Court actions permitting Trump 2.0 to terminate TPS (Temporary Protected Status) for hundreds of thousands of Venezuelans, according to Fox News “rogue lower court judges have continued to issue blocks on the president’s efforts to strip TPS from other groups of foreign nationals,” namely Syrians and Haitians. The Supreme Court has granted hearing in those cases. The lower courts’ defiance is an affront to judicial hierarchy; the Supreme Court is called “supreme” for a reason.
In short, many district judge judges (and some courts of appeals) have been engaged in an unprecedented, unrelenting campaign of Resistance against Trump 2.0. If he wants to restore confidence in the judiciary, Chief Justice John Roberts should take action against the rogue judges, not defend them from well-deserved criticism. Judicial activists are politicians wearing robes.
Plyler v. Doe: what is it and what does it mean?
As the Tennessee General Assembly considers bills that would, according to the Tennessee Star, require Tennessee schools to collect anonymized citizenship information about students, then report the number of students in the country illegally to state officials, legislators are being criticized both for going too far (by Democrats beholden to illegal aliens), and (by some conservatives) for not going far enough—banning illegal alien students altogether—as a prior version of the bill did.
Many people are confused. Since illegal aliens are by definition in the country illegally, why is it controversial for public school systems to want to deny them costly access to free public education? The answer lies in a little-known Supreme Court decision issued in 1982 by a razor-thin 5-4 vote, written by the Court’s most notorious liberal justice in the modern era, William Brennan. The case, which is as full of error as Roe v. Wade, is called Plyler v. Doe.
In order to overturn it, a state will have to challenge it in court by denying free public education to illegal aliens, as California attempted to do in 1994 with Proposition 187, or by making a better case than Texas was able to do 50 years ago.
Plyler v. Doe arose in Texas when a state law passed in 1975 that prohibited the use of state funds for the education of children who had not been legally admitted to the U.S. was challenged by MALDEF (the Mexican American Legal Defense and Education Fund), an agenda-driven advocacy group similar to the NAACP. The challenge was brought as a class action in a forum-shopped federal court case before the famously left-wing activist Judge William Wayne Justice in Tyler, Texas. Predictably, Justice struck the law down, and was ultimately upheld by the Supreme Court—just barely. (LBJ-appointee William Wayne Justice used to be regarded as an atypical activist judge; in the 21st century, all Democrat appointees routinely engage in comparable, or worse, mischief.)
The 5-4 majority ruled that even though illegal alienage is not a suspect classification under the Equal Protection Clause of the 14th Amendment, and even though public education is not a fundamental right, laws discriminating against illegal alien children in the context of K-12 education will be deemed invalid unless supported by a “compelling state interest.” Doctrinally, the ruling has never made any sense. Today’s Court is unlikely to find the flimsy reasoning of Plyler v. Doe persuasive. It is ripe for a challenge.
Justice Brennan’s majority opinion observed in a footnote that the record before the Court did not support “the claim that the educational resources of the State are so direly limited that some form of ‘educational triage’ might be deemed a reasonable (assuming that it were a permissible) response to the State’s problems.” The number of illegal aliens enrolled in our public schools—and the commensurate financial burden on the taxpayers–has increased exponentially in the past 50 years. The Court did not rule that illegal aliens have an absolute right to a free K-12 public education, only that Texas had not proved a “compelling state interest” in denying it.
In other words, states remain free to challenge both the validity of Plyler v. Doe, and to make the case that the financial burden of educating illegal alien children has grown since 1975 to now qualify as a “compelling state interest.” Accordingly, the collection of data authorized by the proposed legislation in Tennessee is a sensible first step in a legal challenge to Plyler v. Doe.
Birthright citizenship is being briefed in the U.S. Supreme Court
For most of my lifetime, birthright citizenship went largely unquestioned by legal scholars. John Eastman and others associated with the Claremont Institute were the rare exceptions. That changed when candidate Donald Trump made it a campaign issue in 2015. Suddenly, the issue was no longer radioactive. In the ensuing decade, and amidst considerable public alarm about our open borders, there has been a renaissance of legal scholarship on the proper interpretation of the “citizenship clause” of the 14th Amendment. The blindly-held assumption that children of illegal aliens born in the U.S. automatically become U.S. citizens suddenly came under heightened scrutiny. It seems the perfect vehicle for an originalist inquiry.
Once-conventional wisdom doesn’t withstand close analysis. The Supreme Court granted review in a case called Trump v. Barbara, for which briefing is underway. Kurt Lash, Ilan Wurman, and other originalist scholars support the legal argument relied on by the Trump administration, denying birthright citizenship, and some of their recent articles are cited in the Solicitor General John Sauer’s recently-filed reply brief. While I still think it is a long shot, a favorable ruling is not out of the question. It is difficult to believe that the framers of the 14th Amendment in the 39th Congress intended to give citizenship to the offspring of trespassers from foreign nations who snuck across our border or otherwise violated our immigration laws.
And common sense now has solid scholarship to back it up.
