Late last month, in his official capacity as presiding officer of the Judicial Conference, Chief Justice John Roberts got sued by America First.
That’s the legal group that Donald Trump’s senior adviser and chief ghoul Stephen Miller founded. America First typically keeps busy by suing everyone Miller finds insufficiently racist. This lawsuit, though, is wholly designed to do Trump’s bidding.
Yes, the lawsuit that would drastically shift power from the judiciary to Trump’s White House was basically engineered by someone who works in Trump’s White House.
You’re probably wondering why this hasn’t been splashed all over every news source, particularly since it was filed almost two weeks ago. It’s a direct challenge to the authority of the judicial branch, yet there’s been nary a peep until Talking Points Memo reported on it Friday. No official statements from the court, no missive from Roberts, no Justice Sam Alito penning a whiny op-ed. Just meek silence about an existential threat.
That meek silence might not seem so distressing if the justices were always close-mouthed about challenges to the judiciary, but that’s not the case. Roberts knows how to issue statements about threats to the judiciary’s independence because he does it routinely. Alito knows how to run to the Wall Street Journal when he wants to complain.
America First’s lawsuit is ostensibly about whether the Judicial Conference of the United States and the Administrative Office of the United States Courts are subject to the Freedom of Information Act. But what it’s really about is a demand that the White House be given control over an arcane, but crucial, part of the judiciary by declaring it part of the executive branch.
Stephen Miller, Trump’s chief ghoul.
Without getting too deep into the brainworms of this theory, it goes something like this: The Judicial Conference is an agency, not a court, because it doesn’t issue decisions. Instead, it is a body that makes rules for the courts. It’s also a body that must respond to congressional oversight requests. The chief justice has the power to appoint people to committees, so, according to the lawsuit, he is “acting as an agency head.” Rinse and repeat for roughly the same argument about the Administrative Office.
You know where this is going, right? If it’s an agency, it’s part of the executive branch. If it’s part of the executive branch, it’s under the control of the president.
In theory, the lawsuit is only asking for this so that those entities would have to respond to America First’s FOIA requests, but the only way that can happen is by saying they’re part of the executive branch, because their current status as part of the judiciary makes them exempt from FOIA.
So, what power would the president gain if both were under his control? Well, the Judicial Conference manages administrative and policy issues for the federal courts.
That sounds fairly benign, but in that role, it handles complaints against federal judges and workplace harassment issues in the judiciary. It prepares plans on how to assign judges if necessary. It promulgates the regulations for financial disclosures and other ethics rules. Imagine a White House that could weaponize complaints against judges it hates while ignoring any ethical lapses by reliable favorite judges.
What about the Administrative Office? It’s what it sounds like. It provides all the administrative support for the judicial branch, including financial, technology, legislative, and program support services. It also develops the annual judiciary budget and carries out Judicial Conference policies.
Imagine a White House that completely controls how resources are distributed across federal courts or decides which program initiatives the courts can undertake. Imagine that White House slashing that funding to the bone or letting Elon Musk’s so-called Department of Government Efficiency run roughshod through confidential databases.
Shifting both of these over to the executive would have another effect, which is that it would undermine congressional oversight. Right now, those offices respond to oversight or investigation requests from members of Congress. In theory, those offices would still have that responsibility, but they’d be controlled by Trump toadies.
Conservatives like Trump and Miller are unhappy that Democratic Sen. Sheldon Whitehouse of Rhode Island had the temerity to inquire into undisclosed billionaire-funded freebies received by Alito and Clarence Thomas. Those inquiries came after the April 2023 ProPublica report that Thomas failed to disclose literally dozens of destination vacations, private jet flights, and more from his billionaire buddy, Harlan Crow. The report sparked Whitehouse’s 2023 request to the Judicial Conference that it refer Thomas to the attorney general for investigation.
Justice Clarence Thomas was the subject of extensive ProPublica reporting about his failure to disclose all of the gifts he’d received from rich benefactors.
So, a close adviser to the president is puppeteering a lawsuit that would strip the judiciary of the power to oversee its own affairs and would hobble its ability to work with Congress on meaningful oversight.
But the most vocal conservative justices do not see this blatant power grab as problematic. At least, that’s what we can deduce from the fact that they’ve said nothing, despite being perfectly happy to speak out on far lesser matters.
Remember when the chief justice was so concerned that Congress not exceed its authority over the judiciary that he refused to appear before the Senate in April 2023 to answer questions about court ethics after news broke about Thomas? About a month later, he touted the judiciary’s “status as an independent branch of government under the Constitution’s separation of powers” as a reason not to allow Congress to impose any code of conduct on the court.
So what exactly does have to happen to rouse Roberts to raise the alarm? Well, apparently, a milquetoast statement from a Democratic senator.
In March 2020, while making a speech outside the Supreme Court, Sen. Chuck Schumer said of Justices Brett Kavanaugh and Neil Gorsuch, “You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.”
Heavens! Roberts rushed to get a statement out that named Schumer, quoted him, and said that "threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”
By contrast, look at the statement Roberts made after Trump went after Judge James A. Boasberg, the judge who blocked the Trump administration’s deportation of Venezuelan immigrants.
“This judge, like many of the Crooked Judges I am forced to appear before, should be IMPEACHED,” Trump declared on social media. He also called Boasberg a “Radical Left Lunatic of a Judge, a troublemaker and agitator.”
And it wasn’t just Trump. Multiple elected GOP officials have introduced articles of impeachment against multiple federal judges. Trump supporters have threatened the families of at least 11 judges who have ruled against the administration.
Did Roberts call anyone out by name? Did Roberts quote Trump? Haha, of course not.
Here’s the whole of Roberts’ statement: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
That’s telling ’em, John.
What about Alito? He’s someone who has not been shy about making public statements whenever he feels attacked. When Alito learned in June 2023 that ProPublica was publishing a story about his failure to disclose a fancy vacation paid for by billionaire Paul Singer and to recuse himself from cases related to Singer’s hedge fund, he had an op-ed over at the Wall Street Journal before the ProPublica piece even ran.
Justice Samuel Alito published an op-ed in the Wall Street Journal to attacks reporting about him.
One month later, he was back on the op-ed pages, the subject of a fawning interview co-authored by David Rivkin Jr., an attorney who had a tax case before the Supreme Court at the time of the interview. In refusing to recuse, Alito explained that Rivkin, when writing the articles, was magically “a journalist, not an advocate.” Sure.
Alito also took the opportunity to declare that Congress can’t regulate the Supreme Court, period, because there’s nothing in the Constitution that says so. It sounds like Alito is very concerned when the other branches try to intrude on the judiciary’s authority! Oh, wait, that only applies to Democrats in Congress. Apparently, when the executive branch makes a power grab, that’s just fine.
A few years ago, the America First case would have been the sort of lawsuit only brought by the weirdest pro se litigants who were convinced that Roberts was Illuminati or some such thing. The notion that the whole of the constitutional order should be upended, that the judiciary’s administrative functions secretly belong to the executive branch, would have been treated like the nonsense it was.
Now, though, this sort of nonsense is being pushed by one of the president’s closest advisers and just happens to track the president’s goal of eradicating the independence of the other branches of government. But still, from the Supreme Court? Silence.
Campaign Action
