If there is no mystery about the nature of the chief justice’s views, I remain baffled by their origin. Clearly, he doesn’t trust Congress; in describing conservative judges, that’s like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel’s Office, he doesn’t like the executive branch any better.
He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency’s interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia’s majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”
Congress can’t be trusted. The executive branch is out of control. What’s left?
The Supreme Court. There’s a comforting thought as we await Year 9 of the Roberts court.
— Linda Greenhouse, The Real John Roberts Emerges, New York Times, today
Yes, the chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.” That is, I guess, as opposed to, say, state laws (and in the case of DOMA, a federal statute) that poke into what should be very private nooks and crannies of daily life, in which case their poking into nooks and crannies of daily life are fine with Roberts.
But more important, but, as I said earlier today and also last week, almost completely ignored by the mainstream media in its coverage of the Supreme Court—and therefore completely unknown to almost everyone—is the current Supreme Court’s bizarre claim that state courts are entitled to unbridled sovereign dignity to poke into every nook and cranny of daily lives. Or to delegate breathtaking effectively-judicial powers to private persons to control every nook and cranny of the daily lives of, say, those unlucky enough to suddenly be subject to, say, family-law court, or probate court, or criminal courts. State courts that routinely ignore even their own state’s legislative dictates intended to ensure compliance with procedural and substantive federal constitutional mandates whose unequivocal purpose is to place individual dignity above what these fair-weather “federalism” jurists claim is the constitutional right to sovereign dignity that state courts have and that grants them the constitutional right to violate individual dignity in even the most profound and basic respects.
As I said in a post here last week, maybe one day Justice Kennedy—who, unlike Roberts, does recognize federal constitutional limits to state legislative– and executive-branch powers even concerning matters that aren’t Republican rallying cries—will deign to explain why he and his cohorts believe that the Constitution, which since the late 1860s has included the Fourteenth and Fifteenth amendments and which still includes both the habeas corpus clause and Supremacy clause, renders state courts sovereigns and therefore untouchable by “collateral” declaratory federal-court order.
And maybe that distinguishes Kennedy from Roberts. Maybe Kennedy one day will give some thought to it. Roberts by contrast will merrily continue his personal legislative agenda, for which no thought is necessary or evident.