Chief Justice Roberts and the Erosion of the Judiciary

When historians review the decline of American judiciary in the 21st century, they may have difficulty evaluating the role of one of its most important figures, Chief Justice John Roberts. His responses to a multitude of challenges have been inconsistent, and at times baffling.

In his 2010 State of the Union Address, President Barack Obama broke the event’s longstanding rules of decorum by hectoring the Supreme Court, six members of which were sitting right in front of him. Obama was peeved by the Court’s recent Citizens United decision, which he alleged would “open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections." Obama had a captive audience for one of his straw-man arguments, and made the most of it. It was too much for Justice Samuel Alito, who muttered sotto voce “That’s simply not true.” Sitting right in front of him was Chief Justice John Roberts, who said and did nothing.

Obama’s verbal assault was a preview of serious problems to come. Obama would eventually go beyond rhetoric, as he and his minions deceived the nation's most secret judicial body, the Foreign Intelligence Surveillance Court (FISC). Later, the Left would launch a multifaceted assault on the Supreme Court. Since both are under the supervision of the chief justice, his responses became a critical factor in combating the erosion of the judiciary.

Obama’s abuse of the FISC began during the 2016 presidential campaign when, in collusion with the Clinton campaign, he authorized “Crossfire Hurricane,” an effort to spy on Donald Trump and his staff. The Obama administration, through the FBI and intelligence agencies, submitted misleading and fraudulent information to the court, including the infamous “Steele Dossier,” to convince the court that surveillance was needed. Obama’s henchmen knew the information they were submitting was tainted. The FISC repeatedly accepted their arguments without ever even convening a hearing.

It’s important to note that the proceedings of the FISC are “ex-parte,” meaning that the government can appear before the judge without the other party being present. Those whom the government wishes to surveil aren’t even notified, much less represented. The integrity of the proceedings is the responsibility of the 11 FISC judges, all appointed and supervised by Chief Justice John Roberts.

Abuse of the FISC continued after the election and into the Trump presidency, resulting in the multi-year “Russian Collusion” hoax, the Mueller Investigation, and Trump’s impeachment.

It is a matter of record that the FISC repeatedly authorized surveillance of the Trump administration based on lies concocted by political opponents. Though the Justice Department and legacy media ignore it, no one disputes it. So egregious was the perversion of the FISC that Inspector General Michael Horowitz subtitled his April 27, 2023 House testimony “Fixing FISA: How a Law Designed to Protect Americans Has Been Weaponized Against Them.”

Horowitz’ outrage unfortunately does not appear to be shared by the Chief Justice. To date, Roberts has offered no apology or announced any sweeping changes to the personnel and procedures that failed so spectacularly. Roberts’ passivity, coincident with a somnolent Justice Department, has left the failed FISC unchanged, and all but one of its violators escaping scot-free. Former FBI agent Kevin Clinesmith was convicted of knowingly submitting false information to the court. For his deception of the nation’s “most sensitive” court, and violation of the constitutional rights of President Trump, Clinesmith received one year of probation and no prison time. The prosecutors had recommended jail time to no avail. Chief Justice Roberts had no comment.

Encouraged by their successful trashing of the FISC, the Left began applying unprecedented pressure on the Supreme Court. At an abortion rights rally in February, 2020, Sen. Chuck Schumer made a personal threat against the justices. On the steps of the Supreme Court building, he screamed: “I want to tell you Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

This time it was too much for the Chief Justice. That same day Roberts issued a response excoriating Schumer: “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.” Roberts' reaction forced Schumer to recant on the Senate floor the very next day.

Unfortunately, Robert’s rebuke to Schumer did not deter those responsible for the subsequent leak of Justice Samuel Alito’s draft majority opinion in the Dobbs case, which was eventually to overturn Roe vs. Wade. With the Supreme Court’s precedents and ethical standards so egregiously violated, Roberts responded once again: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way… I have directed the Marshal of the Court to launch an investigation into the source of the leak.”

Marshal Gail Curley had been in the position for less than a year. By assigning the investigation to the Court's own Marshal, Roberts guaranteed that the entire process would be under his supervision and control. It also meant that the investigation would be conducted by the least experienced and equipped police agency that he could have chosen. The outcome was predictable, and perhaps predetermined. On January 19, 2023 the Court issued a report: alas, the assailant could not be found: “the team has to date been unable to identify a person responsible by a preponderance of evidence.”

A careful reading shows that the Marshal’s “investigation” failed to include even interviewing the nine justices themselves. Several current justices are notorious for leaks which occasionally come from their chambers, though never before of a draft opinion; but the Marshal didn’t even round up the usual suspects. So critical an omission could only have been intentional.

The Dobbs leak, an obvious attempt to intimidate justices during the Court’s final days of deliberation, emboldened abortion proponents to try more direct methods. Protesters gathered outside the homes of justices thought to support overturning Roe. The protests, though in violation of 18 U.S. Code § 1507, provoked no counteraction from the Justice Department. After a few days, some officers were dispatched, not to arrest the protesters, but to keep the unlawful protests orderly.

As the Justice Department stood by, the Biden White House cheered. Spokesperson Karine Jean-Pierre supported lawbreakers who hounded Justice Bret Kavanaugh out of a Washington restaurant: “Peaceful protest -- people should be allowed to be -- to be able to do that.” Even after a foiled attempt to assassinate Justice Kavanaugh, Jean-Pierre said: “We have not weighed in on where people should or should not protest.”

The Chief Justice once again called on Marshal Curley, this time to issue the Court’s objection. Curley wrote to Maryland governor Larry Hogan: “Earlier this week, for example, 75 protesters loudly picketed at one justice’s home in Maryland for 20-30 minutes in the evening, then proceeded to picket another Justice’s home for 30 minutes, where the crowd grew to 100, and finally returned to the first Justice’s home… This is exactly the kind of conduct that the Maryland and Montgomery County laws prohibit.” Tellingly, the Marshal described the protests as violations of state and local laws. No mention was made of federal law, which might have implied a criticism of the Biden administration’s inaction.

There can be no doubt that in recent years the two courts under the direct supervision of Chief Justice John Roberts have been maligned, deceived, abused, and threatened. The Chief Justice has responded with silence, inaction, and restraint, interspersed with occasional expressions of outrage. His responses are hard to understand, and history might find them harder to forgive.

Griff Hogan is a retired educator living in Charleston, South Carolina

Image: Public Domain

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