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Is Chief Justice Roberts the Jim Comey of the Supreme Court?

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American Conservative Union chairman Matt Schlapp last week called for Chief Justice John Roberts’ impeachment over his vote with four liberal justices to deny the Trump Administration a total victory on whether the Census could include a question on citizenship.

Schlapp, whose wife Mercedes is the Trump White House communications director, goes too far—though he may have tapped into an understandable conservative sentiment. I don’t believe Roberts is quite the Jim Comey of the Supreme Court, yet he seems to be asking for the label. Comey’s troubles surfaced when he tried both to condemn and absolve Hillary Clinton of criminal security breaches. All the while, he self-righteously claimed to cleave to a higher loyalty. But that loyalty seems to have ensnared him in an even more insidious conspiracy, which the Justice Department is now investigating.

For his part—and the comparison with Comey goes only so far—Roberts in trying to depoliticize a case ended up protecting partisanship within the government, that is to say within the bureaucracy. He had done something similar in his 2012 opinion on the Affordable Care Act—finding its mandate a constitutional tax after declaring the law unconstitutional based on the main commerce clause arguments presented. In allegedly taking politics out of his opinion Roberts also removes the Constitution. (To be fair, he also enabled Republicans to gain majorities in Congress that should have repealed the ACA, but those majorities failed to it.)

As President Trump blasted the partisan actions of various judges, the chief justice shot back, claiming there are “not Obama judges or Trump judges, Bush judges or Clinton judges.” Trump replied, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” 

In the current case, the court unanimously agreed that a question concerning citizenship could be asked in the 2020 census. Against the liberal justices, it also brushed aside the lower court’s mischief in weighing the musings of Commerce Department bureaucrats over Secretary Wilbur Ross. But the crucial part of Roberts’ opinion in Department of Commerce v. New York contended that the secretary of commerce, who oversees the Census Bureau, had presented “pretextual,”—that is, deceptive—reasons for adding the citizenship question. Thus the lower court should reconsider its decision in light of the Supreme Court’s ruling.

Critics had charged political motives for adding the citizenship question and thereby lowering the count of noncitizen, largely minority persons. The idea is that asking, for example, Central American immigrants about citizenship would discourage them from answering and thus produce an undercount of such persons, and the Constitution in Article I, section 2 calls for a count of all persons, not just citizens. Defenders of the citizenship question point out that suspicion of census counters is not confined to immigrants or minorities.

While Roberts doesn’t buy this bureaucrat’s argument, he also accepts the argument that the Commerce Department’s Voting Rights Act enforcement is a pretext—a dishonest claim that covers up another, possibly illegitimate claim. His argument, endorsed by four liberal justices, makes the reform of the administrative state all the more difficult. The arguments in this case rest on whether we should assume the legitimacy of the administrative state.

Fortunately, Justice Clarence Thomas explains the court’s error—and more important its implications for containing bureaucracy, unelected government, and government by elites. His incisive opinion justifies the citizenship question and defends the ability of the government to control its bureaucrats and to prevent control of the government by whim, partisanship, corruption, or bureaucratic inertia.

Thomas shows how the chief justice’s opinion borders on surrendering to the worst of the administrative state. As Thomas observes, “the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction. The Court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws.”

Roberts unnecessarily complicated the issue—how can counting the number of citizens cause a dispute? Just as a nation can’t exist without borders, no more can it know itself without having a count of citizens.

“Our only role in this case,” Thomas maintains, “is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision . . . . The Court, however, goes further. For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.”

Unless the mischief is contained to this decision, Thomas fears, it will spread with disastrous consequences.

“Opponents of future executive actions can be expected to make full use of the Court’s new approach,” Thomas writes. “Now that the Court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them.”

Moreover, even if the elite’s plot to prevent a count of citizens, a part of the left’s open-borders strategy, is ultimately beaten back, “the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction. The Court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws.”

The court’s census decision is not only, as Thomas charges, “a departure from traditional principles of administrative law.” By shrinking from confronting the charge of political bias, the chief justice affirms the power of the administrative state. For only political fury of informed citizens can corner this savage beast. Thomas has raised these points in many opinions throughout his career and in particular in the last few weeks. These opinions will require further elaboration.

Of course this typical Thomas intellectual honesty has been met by the partisan sneers of the Washington Post editorial board, among other factotums of the administrative state.

For calling out the ineptitude of lower court, the Post fumed “Mr. Thomas’s ill-considered language undermined the defense of the judiciary that the chief justice had previously attempted to mount. And to what end?”

The smarminess went even further. “For Mr. Kavanaugh and Mr. Gorsuch to join such an opinion was a lapse in self-awareness on their part, given how readily Democratic partisans accuse them of bias in favor of the president who appointed them—Mr. Trump.” It’s hard to tell which justices should be more insulted by such tripe.

The Post would thereby recruit the chief justice to its own partisanship. Roberts should take care to legitimate such calls, which he avoided doing in the partisan reapportionment case.

As the court has been in truth politicized for so much of its history, it is impossible to keep politics out of it. Can the chief justice be naïve about this? Is he so steeped in legal mechanics that he doesn’t appreciate the democratic context of the judicial system, and the abuse the courts have dealt the principle of government by consent?

In this crisis, which Trump clearly recognizes, only the clarity of political division will give judicial decisions their republican legitimacy. That is the point of Lincoln’s great speech on Dred Scott. The Constitution is too important to leave to justices.

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