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Jamie Raskin Just Told John Roberts: “The Emperor Has No Clothes”

In this week’s Elie v. US, The Nation’s justice correspondent hails Raskin’s bold call-out. Plus, a counterintuitive take on the SAVE Act and a controversial video-game lawsuit.

Representative Jamie Raskin (D-MD)

The Judicial Conference of the United States held one of its semiannual meetings this week. The conference, which is overseen by Chief Justice John Roberts, consists of a 26-member panel of judges who make suggestions on judicial policy. Often, lawmakers and experts are invited to speak to the judges about the pressing issues of the day. Most of the time, the gathering is entirely pointless: It’s a closed door meeting that isn’t even newsworthy enough for reporters to try to get a scoop on what was said inside.

This week’s meeting was a bit different. Representative Jamie Raskin, ranking member of the House Judiciary Committee, lit into the justices, specifically Roberts. And we know this because Raskin made his remarks public. The meeting was focused on the increased threats to the safety of judges, something that, not surprisingly, judges always want to talk about. Raskin acknowledged the threats, and pledged to do everything he could to ensure the safety of the judiciary. But then he broadened his focus to address why judges are seeing more threats of violence. He said:

Those threatening judges, with menacing voicemails, physical violence, doxxing, or by calling for them to be impeached for ruling a particular way, all share an illegitimate ambition: they seek to change the outcome of cases through fear and coercion.

But the rising tide of threats against federal judges reflects a basic and spreading misunderstanding of what judges and Justices do. You are not legislators who are expressing your policy preferences or the policy preferences of your constituents. Nor are you Executive branch officials who are implementing a public policy decision.… We must combat the misconception that judges are political actors as opposed to elucidators of the meaning of the law. This means the Judiciary itself must make sure that the rule of law operates in a way which makes it clear to everyone what law is.

That is a very nice and respectable way of saying that the Supreme Court has gotten out of its lane. Raskin was calling out the justices for acting like legislators or executives and imposing their policy preferences on the rest of us. That is what’s leading to the “misconception that judges are political actors.”

Raskin went on to call out the court’s use of the shadow docket:

The shadow docket’s flight from reason is an affront to the historic role of the judiciary because its fleeting, conclusory statements are typically the final word on the case. Preliminary injunctions, stays and their grant or denial effectively resolve the matter, since by the time a final judgment issues in the lower courts, the controversy will have been resolved in practice by the unexplained and inscrutable shadow docket decision.

Look, no reasonable person wants judges to get death threats. But Raskin just told Roberts that the way to stop this from happening is not by simply gifting the court with enough congressional funding for the justices to have their own private security forces. The way to truly decrease the pressure on the Supreme Court is for the justices to act like they’re members of a court of law, instead of the rulers of America.

I don’t imagine John Roberts will listen or care. But at least someone told him to his face.

In other news about the Supreme Court’s shadow docket, alleged attempted rapist Brett Kavanaugh and Justice Ketanji Brown Jackson got into it during a rare joint appearance at a Washington, DC, lawyers’ event. Kavanaugh argued that the court is turning to the shadow docket more frequently simply because presidents are using executive orders more often—thanks to “gridlock in Congress.” Jackson pushed back, pointing out, correctly, that the reason is that while in the past the court used the shadow docket to maintain the status quo, now the Republicans on the court are using it to enact new policies.

In decisions that will soon be overturned via the shadow docket, a Portland judge restricted the use of tear gas at an ICE facility located near residential homes.

A federal judge said that the Pentagon’s press policy, which labels reporters “national security threats” merely for disclosing unclassified information without prior authorization from the Department of War Crimes, violates the First Amendment.

In his dissent from the tariff decision a few weeks back, Kavanaugh worried about the complicated nightmare of making restitution to all the plaintiffs charged illegal taxes under the Trump regime. It seems Brett just isn’t used to thinking through complicated problems. Looks like we could have a system in place to make repayments within 45 days, no nightmares required.

I’m not going to pretend to understand the intricacies of Georgia’s 14th Congressional District, the place that inflicted Marjorie Taylor Green on us. I’ll just tell you that the runoff in the special election to replace Green will feature Democrat Shawn Harris against the Trump-backed MAGA plant Clay........

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