John Roberts’ War

Let's shine a spotlight on the Court’s complicity

It is a sign of how precipitously our world can tumble toward chaos that when I headed to the airport in Honolulu last night, after visiting my in-laws for the New Year, my thoughts were on what I hoped would be a quiet weekend preparing for the resumption of school and work.

Once aboard, I checked my phone one last time before turning it to airplane mode and settling in for maybe a few hours of sleep. There were early reports of explosions in Caracas and other cities in Venezuela.

And then when I landed and turned my phone back on, I was overwhelmed by a torrent of foreboding news about a horrific escalation. The danger is real; its scale unknowable because the regime that has commandeered our country is allergic to strategic thinking, caution, foresight, planning, and especially the law. Heaven help us.

There are so many ways in which what is transpiring poses a dire threat to the world order. The message — that “might makes right” — is certainly being celebrated in Beijing and Moscow. And if North Korea, or anyone else, had any lingering doubt about whether it helps to have a nuclear check on American military adventurism, today makes it clear that no one is safe. No norm of international borders is sacrosanct. Heck, Trump is already threatening Mexico.

The coward who feigned bone spurs to avoid serving in Vietnam is sure trigger-happy when he can sit in his gilded office in a partially demolished White House. Lest we forget, just a week ago Trump bombed Nigeria, along with an ongoing campaign of lethal attacks in the Caribbean and Pacific, without any due process or proof of immediate threat. Of course military, legal, and policy experts are questioning the rationale and effectiveness, never mind the legality, of all this recklessness. But who needs experts, clarity, or the law when the main purpose is to show the world that you’re a tough guy?

Well, tough guys don’t always look that tough once they’ve been exposed as fools.

The questions around Venezuela are too many to count, but they boil down to variations of the same thing: what happens next. The truth is, of course, that we don’t know. No one knows. And how do we know that? Because we’ve been here before. How many illegal wars of choice do we have to launch before we learn the lesson that starting the bombing is the easy part?

Of course, the American public knows this better than the regime. And foreign wars like this one have become deeply unpopular after the tragic outcomes in Iraq and Afghanistan. I’m sure there will be some rallying by Republicans. And no one should feel bad for Nicolás Maduro. He was a horrible dictator. But the long-term prospects are ominous. And so, for that matter, are the short-term crises. We will have to see how our allies react, whether they will even continue to consider us an ally, and how our adversaries respond, or, in other words, the dictators Trump calls friends.

There is no confusion when it comes to the Constitution: military action like this must begin with Congress. Leaders say they were not briefed until after Maduro was taken. So what will they do about it? A recent article in The New York Times ran under the headline, “A Diminished Congress Weighs Whether to Reassert Its Power.” That framing is ridiculous. Congress is not the problem per se; the Republicans who control it are, serving as a rubber stamp for a would-be dictator. An institution is only as good as the people in it. And thankfully the American public has a chance to change who runs Congress this November. If Democrats win the majority, I doubt they will spend much time weighing whether to reassert their power.

But amid all of these worthy recriminations, there is another institution that demands much harsher scrutiny. There is no question that the Supreme Court under John Roberts blessed this presidency with virtually no limits on its power and placed this president, unstable and unworthy, above the law.

Judges across the federal judiciary, including many appointed by Republicans and even by Trump himself, have repeatedly ruled with clarity and conviction to restrain the excesses of this lawless regime. By contrast, Roberts has eagerly removed the guardrails of our constitutional order, melting them down into a scepter and crown for a man he has allowed to rule as a monarch.

This war is Roberts’ war. The terror inflicted in our streets by ICE and Border Patrol rests on him as well. So does the destruction of our scientific research enterprise and the massive cuts to USAID, whose human consequences are already being measured in death and suffering on an enormous scale. Roberts appears to have no problem with corruption and lawlessness, so long as it is carried out by his side.

Just because the justices are called justices, just because they use elevated language, just because they hide behind the mechanics of the legal system, does not mean they are anything other than politicians in robes who eagerly enable autocracy. The man who once claimed he was merely an umpire calling balls and strikes now behaves like one fixing games for a mob boss intent on destroying democracy while enriching himself and his cronies.

What a fraud.

The Roberts Court belongs in the same grim historical company as the Court led by Roger B. Taney, which gave the country the Dred Scott decision and helped accelerate a national catastrophe. History will judge this Court harshly, and it should. But the judgment of the future is not enough. The damage is happening now.

The Court is already deeply unpopular, and Democrats should not hesitate to connect that unpopularity to consequence. Every act of lawlessness this regime commits flows through a Supreme Court that stripped away restraints and called it jurisprudence. If we are serious about saving our democracy and rebuilding it afterward, reimagining the Court must be a central project. Exposing it for the disgrace it has become is not radical. It is necessary.

When Brett Kavanaugh blessed racial profiling in immigration enforcement, the practice quickly became known as “Kavanaugh stops.” The backlash was swift, sustained, and effective. Faced with public outrage, the justice has begun signaling an interest in revisiting the very rationale he had advanced. Public pressure matters. It always has.

So how’s your war going, Chief Justice Roberts?