John Roberts: Federalist Revisionist and Judicial Supremacist
During Chief Justice Roberts’s confirmation hearing, he refused to call himself an originalist. And during his nearly two decades on the Court, he has never raised the banner of originalism. But he sure does like to cite history. And it is generally history with a John-Roberts spin. Take Trump v. Vance for example. He relied extensively on Chief Justice Marshall’s rulings in the Aaron Burr treason trials. But, as I noted at the time, “Roberts recounted a sanitized version of this seminal dispute.” And that history served Roberts’s goal of promoting the utmost power of the judiciary over the other branches.
We saw some similar revisionism in Loper Bright. First, Roberts cited Federalist No. 37. This paper is frequently associated with the concept of liquidation–that is, when the political branches engage in some sort of long-term settlement, the meaning of the Constitution itself can be settled, or liquidated. Indeed, this paper has been cited often of late. Justice Kavanaugh raised it during oral argument in Trump v. Anderson. Justice Kagan invoked it in her CFPB concurrence. Justice Barrett relied on that paper in her Vidal concurrence. Justice Kavanaugh leaned into it in his Rahimi concurrence and his Moore majority opinion.
In Loper Bright, however, Roberts seems to recast Federalist No. 37. For Roberts, the liquidation does not occur through settlement in the political branches. Rather, he sees the liquidation as being performed by the Courts themselves. Part II-A opens this way:
Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear. Cognizant of the limits of human language and foresight, they anticipated that “[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation,” would be “more or less obscure and equivocal, until their meaning” was settled “by a series of particular discussions and adjudications.” The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison).
The subtext here is that the courts, and not the executive branch, would resolve ambiguities in the text of the laws. Who know that Madison came out against Chevron deference!?
But here is what Madison wrote in Federalist 37:
The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects
Article from Latest
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.