The role of the Judicial branch is to check the Executive and Legislative branches.
Wednesday, on a Podcast, J.D. Vance said Chief Justice of the Supreme Court John Roberts was “profoundly wrong” about the role of the judiciary.
I invite civil, bipartisan discussion on this post.
I want to take a more detailed look at the Vice President’s comments, but first I think we need to take a step back and look at the full comments of Justice Roberts.
In a fireside chat with U.S. District Judge Lawrence J. Vilardo, Justice Roberts discussed a range of topics, but they had this exchange related to the notion of judicial independence:
Judge Vilardo:
Yeah. Let’s talk about something a little more important, a little more substantive. I think most judges would agree that judicial independence is crucial. Do you agree? What do you think?
Chief Justice Roberts:
Oh yeah. I mean it’s central. The only real political science innovation in our constitution, parliaments have been around for 800 years, and obviously executives, is the establishment of an independent judiciary. Even places you think are similar to ours, like England. The judiciary in England was part of Parliament. I mean, they sat in the House of Lords, because Parliament was Supreme. But in our constitution, judges and the judiciary is a coequal branch of government separate from the others with the authority to interpret the Constitution as law and strike down obviously acts of Congress or acts of the President. And that innovation doesn’t work if the judiciary is not independent. Its job is to obviously decide cases, but in the course of that, check the excesses of Congress or of the executive, and that does require a degree of independence.
Now, let’s examine some more detail into what the Vice President said on a podcast with Ross Douthat:
Let me just make one final sort of philosophical point here. I worry that unless the Supreme Court steps in here, or unless the district courts exercise a little bit more discretion, we are running into a real conflict between two important principles. Principle one, of course, is that courts interpret laws.
Principle two is that the American people decide how they’re governed. That’s the fundamental small democratic principle that’s at the heart of the American project. I think that you are seeing, and I know this is inflammatory, but I think you are seeing an effort by the courts to quite literally overturn the will of the American people.
To be clear, it’s not most courts, but I think what the Supreme Court has to do, and I saw an interview with Chief Justice Roberts recently where he said, the role of the court is to check the processes of the executive. I thought that was a profoundly wrong sentiment. That’s one half of his job.
The other half of his job is to check the excesses of his own branch. You cannot have a country where the American people keep on electing immigration enforcement and the courts tell the American people, they’re not allowed to have what they voted for, and that’s where we are right now. We’re going to keep working it through the immigration court process, through the Supreme Court as much as possible.
If you want more context, I strongly recommend listening to the interview. Vice President Vance explicitly talks about the nuance of due process and how legally, based on Acts of Congress, there are differences in due process requirements between immigrants and citizens, but clearly states that due process is required of everyone saying, “illegal immigrants, by virtue of being in the United States, are entitled to some due process”.
In regard to Vice President Vance’s comments, there are a number of items I would like to address:
- He is right that if the American people feel strongly enough about a given policy, they can elect leaders who have the authority to change laws to accommodate them. But he is implicitly claiming that the President should have this authority. If the will of the American public is strong enough, Congress and the states have the ability to amend the Constitution. Until that happens, the Constitution and existing amendments must stand as they are written and interpreted by the judiciary.
- Justice Roberts was talking about the role of the judiciary, not his specific role on the Supreme Court. It is absolutely the role of the judiciary to interpret the laws and the Constitution according to Article III, Section 2 where it is clearly the role of the judiciary to check the powers of Congress and check the powers of the President.
- Justice Roberts is keenly aware that part of his role is to “check the excesses of his own branch”. The Supreme Court ultimately acts as the final appellate court and has the power to overturn lower court decisions.
It is not news that the framers of the Constitution believed in independent branches of government.
In Federalist 51, James Madison said:
“In order to lay a due foundation for that separate and distinct exercise of the different powers of government… it is evident that each department should have a will of its own.”
In Federalist 78, Alexander Hamilton said:
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution… to guard the Constitution and the rights of individuals from the effects of those ill humors which… sometimes disseminate among the people themselves.”
The courts are not above democracy. But we cannot allow the Presidency to unilaterally determine the laws of the United States.
Sources:
Vance says Roberts is ‘profoundly wrong’ about Supreme Court’s role to check the executive branch – ABC News
Justice Roberts Fireside Chat
https://podcasts.apple.com/us/podcast/jd-vance-on-his-faith-and-trumps-most-controversial/id1438024613?i=1000709244230
Article III – Judicial Branch | Constitution Center
https://founders.archives.gov/documents/Hamilton/01-04-02-0199
The Federalist No. 78, [28 May 1788]