“The Case for Insulating the Judges From Political Accountability Weakens”

In the early 1980s, Southern Republicans like North Carolina senator Jesse Helms were concerned about the power of the federal judiciary to advance a liberal agenda and defang conservative policies, and proposed more than two dozen bills aimed at stripping power from the courts. In the previous two decades, the Supreme Court had defied social conservatives and entrenched abortion rights in Roe v. Wade, upheld busing to enforce desegregation, and declared school prayers unconstitutional.

Officials within the Reagan administration were split on the so-called “jurisdiction stripping” legislation and questioned whether it was constitutional. Roberts, then a lawyer in the Justice Department, seemed to favor the effort. He criticized the Office of Legal Counsel’s assistant attorney general Ted Olson, who believed the efforts were unconstitutional, on numerous occasions.

“Opposition to jurisdictional limits on constitutional grounds will be considered as a position of courage, integrity and principle,” Olson had written in a memo on the legislation.

“Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises, and Brinks,” Roberts wrote in the margin of Olson’s memo, referring to three liberal lawyers who had opposed the jurisdiction-stripping bills.

Ken Starr, then Reagan’s attorney general, directed Roberts to provide a reasoned defense of jurisdiction stripping.

Roberts wrote in a 1981 memo that the Constitution’s “exceptions clause,” which has been interpreted to allow Congress to strip power from the Supreme Court, was “clear and unequivocal,” adding that the framers of the Constitution “were not inartful draftsmen and can be expected to have known how to express the more restricted interpretations advanced by modern commentators had such constructions in fact been intended.”

“He was willing to get rowdy in facing down the judiciary,” said Moyn.

While jurisdiction stripping was favored by many conservatives at that time, Roberts also supported a far more fringe effort to rein in the courts.

In 1983, a senator from Oklahoma who was concerned about the power of federal judges “to turn criminals loose” introduced legislation to impose a ten-year term limit on federal judges, after which point the Senate could reconfirm them for an additional term. Reagan’s Justice Department prepared a report opposing the amendment, arguing that it undermined judicial independence and taking issue with the fact that judges could be reconfirmed by the Senate without the involvement of the executive branch.

But Roberts, at that point a White House lawyer, once again argued against his fellow administration lawyers, just months after the Supreme Court handed down rulings that thwarted the power of the other two branches. Those decisions included ending Congress’s “legislative veto,” blocking Reagan’s deregulation of airbags and automatic seat belts and ruling that deregulation was subject to the same legal standards as issuing new regulations, and reaffirming the constitutional right to an abortion.

On October 3, the first day of the Supreme Court’s 1983–84 term, Roberts sent a conspicuously timed memo in favor of term limits for judges “without possibility of reappointment” by the Senate. The court was set to hear major cases that term including Chevron v. NRDC, which dealt with which branch of government — the courts or federal agencies — retained the power to interpret laws in certain cases.

Roberts’s memo claimed that the Justice Department’s report opposing term limits was “somewhat disingenuous” because it cited documents from the time of America’s founding that “were predicated on a view of the judge’s role that many if not most sitting federal judges would find unacceptably circumscribed.”

“To the extent the judicial role is unabashedly viewed as one in which judges do more than simply figure out what the Framers intended,” wrote Roberts, “the case for insulating the judges from political accountability weakens.”

He was arguing, in other words, that if the court was going to engage in politics, it could not also claim it was above politics and therefore immunized against accountability.

“A Very Lonely Dissenter”

Between working as a Reagan administration lawyer and ascending to the high court himself, Roberts went from being a critic of the court’s immunity from accountability to one of its staunchest defenders against any possible encroachment by Congress.

“Since he’s been on the Supreme Court, he’s [been] deeply skeptical of Congress being able to tell courts how to rule in a particular case, or to narrow the kinds of cases or the kinds of issues they can rule on,” said Alan Trammell, a law professor at Washington and Lee University. “Sometimes he’s been a very lonely dissenter on that.”

One such case was Bank Markazi v. Peterson (2016), which dealt with a law passed by Congress that required the Iranian government to pay damages to US victims of terrorist attacks. Iran’s central bank sued, arguing that the law violated the separation of powers by intervening in a specific, pending lawsuit over the damages. Seven justices on the court sided with Congress, but Roberts and Sonia Sotomayor dissented.

“Today’s decision will indeed become a ‘blueprint for extensive expansion of the legislative power’ at the judiciary’s expense,” Roberts wrote in his dissent.

Roberts’s careful guarding of the court could become a problem as Democrats consider even meager jurisdiction-stripping efforts as a way to enact their agenda. While they haven’t proposed anything as radical as the bills introduced by Southern Republicans in the early 1980s, Democratic lawmakers have slipped anti-judicial review provisions into a handful of bills recently.

In the Inflation Reduction Act, one of the keystone Democratic legislative initiatives of Joe Biden’s presidency, lawmakers included language to prevent the courts from reviewing the prices negotiated as part of the measure allowing Medicare to negotiate lower drug prices on some medicines.

Drug companies and their lobbying groups have challenged this anti-judicial review provision as unconstitutional in lawsuits attempting to block the legislation from taking place.

But a comprehensive study of congressional efforts to preempt the courts from reviewing agency decisions, conducted by Laura Dolbow, a fellow at the University of Pennsylvania Law School, found that such provisions in statutes are actually fairly common. “At least 190 provisions in the US Code expressly preclude judicial review over agency actions,” according to a forthcoming article by Dolbow to be published in the Vanderbilt Law Review.

Medicare, Dolbow found, has the most of these laws of any program. “It’s very common that when Congress sets up a program where Medicare will pay for health care services or pharmaceutical products, that it says the payment rate will not be subject to judicial review,” Dolbow told the Lever.

While the courts typically respect the so-called “review bars,” Dolbow said, the drug price negotiation lawsuits are attempting a somewhat novel tactic to bypass the review bars.

“The big issue right now that courts are kind of dodging is whether or not a review bar like this can preclude constitutional claims,” she said. “All of the complaints that have been filed over the drug price negotiation program exclusively raised constitutional claims. They’re doing that because they’re trying to get around the review bars.”

The arguments, Dolbow said, are weak, and the lawsuits might get tossed out on standing grounds before the courts hear them — since negotiations haven’t started. But the suits pose a test to the Roberts court over a key Democratic agenda item.

“[Roberts] has been more inclined than most other justices to say, ‘hold on, Congress is invading our power,” Trammell said. “And he’s been very reluctant to find that Congress has even stripped jurisdiction.”

That was the case in Patchak v. Zinke (2018), where six of the justices sided with Donald Trump’s interior secretary, Ryan Zinke, to uphold a law directing federal courts to dismiss lawsuits pertaining to a particular tract of land. But Roberts penned a dissent, arguing that the majority had incorrectly viewed the law as a jurisdiction strip.

“Congress cannot, under the guise of altering federal jurisdiction, dictate the result of a pending proceeding,” Roberts wrote.

His dissent is now being cited by environmentalists challenging a recent debt ceiling law provision that required federal agencies to issue permits for the Mountain Valley Pipeline, a natural gas pipeline backed by Sen. Joe Manchin (D-WV) and blocking federal courts — which have been holding up the project — from exercising judicial review over the permits.

“His first goal, which leads him to sometimes subordinate his own ideological and political priors, is to make sure the court’s power remains untrammeled,” said Moyn. “Many of his seemingly good decisions are really about Roberts joining the liberals to save the court’s reputation so that its power is not diminished. That makes those good decisions look much less glamorous. Because they’re about self-preservation.”

“The Status Quo Is No Longer Tenable”

It’s not just the court’s jurisdiction that Roberts has been preciously protecting. He has previously threatened that Congress’s power to impose financial reporting, gift, and recusal rules on the high court had “never been tested.”

Supreme Court justices must comply with long-standing federal ethics laws mandating financial disclosures, though the court does not have its own ethics code governing issues like standards for recusal.

In 2011, following reports that conservative justices had attended Republican fundraisers and strategy sessions, Democrats introduced legislation to impose a code of ethics on the court. Roberts shot back in his annual report that year, warning that while Supreme Court justices voluntarily comply with the ethics rules that cover the rest of the federal judiciary, the high court “has never addressed whether Congress may impose those requirements on the Supreme Court.”

Roberts has declined, meanwhile, to enforce federal ethics laws against the justices or impose an internal code of ethics on the court.

Now, as Senate Majority Leader Chuck Schumer (D-NY) promises to hold a vote this year on a Supreme Court ethics code and House Democrats have reintroduced legislation to create term limits for the federal judiciary, they could be setting up for a battle with Roberts.

In April, following bombshell reporting by ProPublica that Justice Clarence Thomas had for two decades accepted undisclosed gifts from billionaire GOP megadonor Harlan Crow, Senate Judiciary Committee Chairman Dick Durbin (D-IL) asked Roberts to testify before the Senate about Supreme Court ethics.

The court’s ongoing ethical lapses “were already apparent back in 2011, and the court’s decade-long failure to address them has contributed to a crisis of public confidence,” Durbin wrote in a letter to Roberts. “The status quo is no longer tenable.”

Roberts declined to appear, writing in response that “testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

Rather than conducting his own, internal ethics investigation into the Thomas revelations, he punted the matter to the Judicial Conference, a policymaking body made up of largely Republican-appointed federal judges. That body referred the matter to the Committee on Financial Disclosure — whose members’ identities were previously kept secret.

It is not clear that the Supreme Court would necessarily respect the conclusions of the Financial Disclosure Committee, since it is made up of lower court judges.

Reports have continued to flood in about ethics violations or the appearance of corruption on the court. Justice Samuel Alito accepted an undisclosed private jet flight from conservative hedge fund billionaire Paul Singer and did not recuse himself from cases involving Singer’s business. Alito’s wife leased land to a major oil and gas company for drilling, while Alito voted to scale back the Clean Water Act with the backing of fossil fuel interests. Conservative legal activist Leonard Leo, who reportedly organized Alito’s ride on Singer’s plane, separately steered consulting payments to Thomas’s wife Ginni.

The head of a major law firm with a Supreme Court practice bought property from Justice Neil Gorsuch just nine days after he was confirmed by the Senate — and Gorsuch did not disclose the buyer. Sotomayor earned millions in book royalties from Penguin Random House but declined to recuse herself from cases involving the publisher. Lawyers with business before the court paid a Thomas aide via Venmo in connection to Thomas’s Christmas party. The list goes on.

Meanwhile, the court has struck down key components of the Biden agenda, most recently his student debt cancellation plan, using procedural gimmicks and ignoring glaring issues like plaintiffs’ lack of standing. Last year, the Supreme Court overturned Roe v. Wade, eliminating federal protections for abortion rights and allowing states to once again ban the procedure.

In response to the mounting revelations and increasingly right-wing rulings, top Senate Democrats announced that the Judiciary Committee would hold a vote on Supreme Court ethics legislation on July 20. Their bill requires the high court to adopt and make public a code of conduct, establishes new gift and travel disclosure requirements, creates rules for recusal, and empowers a panel of lower court judges to review ethics complaints.

Rep. Ro Khanna (D-CA) has reintroduced legislation to impose eighteen-year term limits on Supreme Court justices and allow presidents to appoint two justices per term.

“Our Founding Fathers intended for lifetime appointments to ensure impartiality,” Khanna said in a statement last month. “The [student debt] decision today demonstrates how justices have become partisan and out of step with the American public.”

For his part, Biden seems unwilling to do anything. While Biden recently acknowledged that the Roberts court “is not a normal court,” he opposed calls for Democrats to add seats to the Supreme Court, arguing it would “politicize it maybe forever in a way that is not healthy.”