Chief Justice John Roberts Has Lost Control Over His Radical Republican Supreme Court

I have said it before, and I will say it again: Chief Justice John Roberts has lost control over the Supreme Court of the United States. Five radical Republicans – three of whom are controversial judges appointed by Donald Trump – have seized control of the court away from him. He is “chief” in name only by virtue of his title.

It appears that Chief Justice John Roberts has reached his breaking point with the judicial activism of the five radical Republican justices. I have said before that if this alleged “institutionalist” really cares about the institution of the Supreme Court, he should shake things up by resigning in protest at the end of this term and give President Biden another nominee, this time for Chief Justice. Roberts’ legacy as chief is already a mixed bag, it can only get worse for him.

CNN reports, Chief Justice Roberts joins with liberals to criticize ‘shadow docket’ as court reinstates Trump-era EPA rule:

A 5-4 Supreme Court reinstated a Trump-era rule Wednesday that restricts the authority of states to reject federal permits under the Clean Water Act in another ruling putting the court’s “shadow docket” in the spotlight.

Chief Justice John Roberts joined the court’s liberal justices in dissent, arguing that the court’s majority had “gone astray” by granting an unwarranted request on its emergency docket.

“That renders the Court’s emergency docket not for emergencies at all,” Justice Elena Kagan wrote for the four dissenters. She said that the Republican-led states and others that had petitioned the court for emergency relief had not shown they would suffer the necessary irreparable harm to make their case.

“This Court may stay a decision under review in a court of appeals only in extraordinary circumstances and upon the weightiest considerations,” Kagan wrote. She said the challengers’ request for a stay rested on “simple assertions – on conjectures, unsupported by any present-day evidence.”

The majority’s move, Kagan insisted, signals the court’s view of the merits even though the applicants have failed to make the irreparable harm showing “we have traditionally required.”

The emergency docket, she said, “becomes only another place for merits determination – except without full briefing and argument.”

The five conservative justices did not explain their reasoning for reinstating the Trump-era rule.

The emergency docket – referred to by some justices and outside observers as the “shadow docket” – has increasingly come under criticism by those who say that important issues are being resolved without the benefit of full briefing schedule and oral arguments.

While the court’s liberals, especially Kagan, have often criticized the use of emergency petitions, this is the first time Roberts has explicitly joined in.

“We’ve seen Chief Justice Roberts join the Democratic appointees in dissenting from some of the Court’s prior shadow docket rulings,” said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, who is penning a book on the shadow docket. “But today’s ruling is the first time he’s joined in publicly criticizing the majority for how it is using and abusing the shadow docket. That’s a pretty significant development, and a strong signal for the Court’s de facto leader to be sending.”

In the dissent, Kagan wrote that the challengers had failed to offer “concrete proof” that they would be harmed if the Environmental Protection Agency rule were not reinstated. She noted specifically that they had waited five months after the lower court vacated the rule to make their request. In addition, she said, a federal appeals court is set to hear the dispute next month and that the rule that is currently in place had previously been on the books for some 50 years.

Last September, [the court’s most radical member] Justice Samuel Alito launched a 10-point rebuttal in an unusual speech, defending the court’s practice when it comes to the emergency docket. He said the complications surrounding the emergency requests and said that the justices do “the best we can” under the time constraints imposed by the situation. Alito called criticism “very misleading,” stressing that there is “absolutely nothing new about emergency applications.”

The court’s order on Wednesday reinstates a rule that restricts the authority of states under the Clean Water Act to reject federal permits for projects that affect waters within their borders. The Trump-era rule will go back into effect while the Biden administration issues a new rule which is expected to be finalized by spring 2023.

It is a loss for more than 20 Democratic-led states, the District of Columbia, environmental groups and tribes that challenged the rule put in place by the Trump administration in 2020. They said it limited the abilities of states and local communities to weigh in on projects that could harm their communities. Challengers said the Trump rule could lead to projects – such as a strip mall on a wetland, a hydroelectric project or oil and gas pipelines – that could alter waterways without input from the state.

Earthjustice, representing environmental groups and tribes opposed to the Trump rule, criticized the court’s order.

“The court’s decision to reinstate the Trump administration rule shows disregard for the integrity of the Clean Water Act and undermines the rights of tribes and states to review and reject dirty fossil fuel projects that threaten their water,” said Moneen Nasmith, senior attorney for the group.

A lower court had vacated the rule, prompting a group of Republican-led states and various industries to seek emergency relief from the Supreme Court.

As it did earlier this year with the court’s extensive use of the “shadow docket” to second-guess health experts on Covid-19 safety protocols and vaccines with judicial activism, The Supreme Court Has Anointed Itself Czar of the Country’s COVID Rules: The conservative justices say that vaccine policy is Congress’s or the states’ job, but in practice they’re the ones calling the shots now.

[A]s a matter of constitutional law, [radical Republican] Justice Neil Gorsuch nailed the crucial issue in the opening line of his concurring opinion: “The central question we face today is: Who decides?”

According to the Court’s conservative majority, the answer appears to be that the Supreme Court is the ultimate decider of all things—such that its unelected members can wipe out the actions of the democratically elected branches of government with the stroke of a pen.

This is not how things are supposed to work.

[T]he problem is that the Court didn’t acknowledge that in not choosing OSHA, it wasn’t actually choosing states or Congress. It picked itself. In doing so, the Court did not adhere to the confines of its own role under Article III to resolve “cases” and “controversies” between discrete parties.

[T]his is precisely why Breyer closed his opinion with the same question that opened Gorsuch’s: “Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID-19?”

The majority effectively answered this question by anointing itself in charge.

Breyer saw it that way too. And he didn’t like it: “And then, there is this Court. Its Members are elected by, and accountable to, no one. And we lack the background, competence, and expertise to assess workplace health and safety issues. When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise.”

Welcome to the new America, friends. Where the new boss of all bosses is not a king, or a president, or even Congress. It’s five or more elite legal minds with more unaccountable power than anyone—and with very strong opinions about what the law should be.

The five radical Republican justices are turning the United States Supreme Court into a modern-day Star Chamber, a symbol of oppression to the citizenry acting through its elected representatives in Congress.