Though America has become a goldfish-brain society that forgets its entire world every fifteen minutes, it’s worth taking a moment to appreciate the cautionary tale implicit in the New York Times’ new blockbuster story about the Supreme Court’s shadow docket. The secret memos that the Times unearthed show Chief Justice John Roberts has become the kind of tyrannical, politically unaccountable “activist” judge that Roberts once warned about.
As a young lawyer, Roberts made a name for himself within Reagan administration, casting himself as a leader of a movement to curtail judges’ power. Indeed, in one memo, Roberts provided talking points about judicial selection, urging Reagan officials to declare that “this Administration is attempting to restore a balance on the Federal judiciary that does not exist now with the judicial activism we see. Judges should interpret the law, not make it or execute it.”
In another memo, Roberts gave Ronald Reagan’s attorney general a crafted “Judicial Activism Q&As: Specific Examples.”
And in a particularly ballsy memo, Roberts explicitly took issue with the Reagan administration’s own Justice Department and its defense of lifetime tenure for judges. Roberts countered by asserting that judicial term limits were a “healthy” idea, specifically because judges were intervening in matters best left to the other branches that the Constitution says should be making and executing laws.
“To the extent the judicial role is unabashedly viewed as one in which judges do more than simply figure out what the Framers intended, the case for insulating the judges from political accountability weakens,” he wrote. “The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches.”
This all culminated in Roberts promising at his 2005 Supreme Court confirmation hearing that “I have no agenda” and that “I will remember that it’s my…
Auteur: David Sirota
