Opinion: Justice Roberts is Partially Right But Entirely Wrong in Making Comments that Invade "Legislative Independence"

 

 

A judiciary that values "judicial independence" must respect "legislative independence"

 

We are oft-told that unless either the Judicial or Executive Branches is a party to that particular lawsuit, lawmakers and Presidents and state Governors should not attempt to tell the Judicial Branch how they should rule in a specific instance.  This concept is usually called "judicial independence" and its justifications include the fact the judiciary operates as a separate and co-equal branch of government.

Justice Roberts recently criticized calls to impeach a trial court judge in Washington, D.C., i.e., District Court, James Boasberg,for, inter alia, his attempt to control the precise and detailed operations of the executive branch (including an order to turn around planes put in flight by the Executive Branch).  Indeed, this unconstitutional overreach was the subject of a recent congressional hearing. (See https://www.youtube.com/watch?v=JJ07UCK7AXk.) 

 

Justice Roberts responded to these calls for impeachment by stating the obvious, namely, that impeachment of a judge or justice is not the primary method to correct improper rulings, this being appellate review. (See  https://apnews.com/article/donald-trump-federal-judges-impeachment-29da1153a9f82106748098a6606fec39.)

 

Though Justice Roberts was correct in this respect, his comments were entirely wrong and utterly misguided in a broader sense.  Simply put, it is not proper for the Judicial Branch to tell the Legislative Branch how it may utilize the power of impeachment.  

 

This legislative power to impeach is found in Article I, Section Two, of the United States Constitution:

 

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

 

If the judiciary should not be told or pressured as to how to rule on a specific issue or case, it follows that likewise the legislature should not be lectured as to how to exercise its own power, and, in particular, how to decide whether to impeach someone.  After all, if the judiciary is a separate, independent, and co-equal branch of government, so is the legislature.

 

Indeed, if the President is impeached by the House of Representatives, then our Constitution states the Chief Justice presides over the trial in the Senate. But this does not occur if it is a judge or justice who is impeached, and the Chief Justice therefore does not preside.  This indicates that in the case of impeachment of other persons, including judicial officers, impeachment proceeds without the participation of the Chief Justice or other members of the judiciary.

 

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The Judiciary's Takeover of the Executive Branch continues: Trial Court Judge Attempts to Direct Path of Federal Aircraft

 

District Court Trial Judge Believes He Has the Same Authority as the President of the United States

 

In a recent post we discussed insidious attempts by the Federal Judiciary to act beyond their jurisdiction and to order the Executive Branch to undertake, or not undertake, very specific actions which are within the core powers of the President of the United States and the departments and agencies which "execute" his authority. Our prior post is here, which predicted the Supreme Court of the United States will need to rein in these trial courts:

 

https://appellatespectator.blogspot.com/2025/02/unconstitutional-interference-by.html.  

 

While this executive authority is often derived from specific statutes, it is ultimately derived from Article II of the United States Constitution, as our prior article discussed.  On the other hand the Judiciary's power is derived from Article III and does not include supervision of the day to day activities of the Executive Branch, or vice versa.

 

This past week this trend continued with a stunning development.  One of these unelected trial-court judges, meaning he is but one of the hundreds of United States District Court Judges, attempted to order the Executive Branch about, and, in particular, a Federal plane, to alter a flight mid-course on its way to take Venezuelan gang members to El Salvador. The ACLU sued to block the deportation of these violent thugs from Tren De Aragua, this deportation taking place under a 1798 law permitting the President of the United States to deport such aliens. (See https://www.dailymail.co.uk/news/article-14507571/trump-deportation-flights-el-salvador-terrorists.html.) 

 

The ACLU sought and received an order that the deportation, already in progress, stop and, indeed, that a plane be turned around, mid-flight.  As the Court had no legal authority whatsoever to direct the mode, speed, or direction of such a flight and the aircraft had left United States airspace, the President of the United States (who, unlike a trial court judge, does have the authority to direct the path of the aircraft) did not order the aircraft to change course.  

 

However, the trial judge does not see his obvious overreach and has demanded to know why his order to change the path and destination of the aircraft was not immediately complied-with while the plane was in mid-air.  (See https://www.cbsnews.com/news/trump-administration-ignored-order-gang-removal-flights/ .)  Dictators, it seems, do not take kindly to non-compliance.

 

We understand these trial court judges believe their power to issue "nation-wide" injunctions is unlimited and, it is rather apparent, are determined to do whatever it takes to frustrate the will of the American people was evidenced by the law election.  But this latest order is beyond extra-jurisdictional and, in fact, is dangerous: if a trial court judge may issue orders that include directions to pilots as to how to proceed, there really is no limit upon judicial "supervision" of any and all functions of the Executive Branch.

 

Indeed, in doing a search on Bing.com about this incident, the AI-generated summary stated:

 

The aircraft that sent Tren de Aragua members to El Salvador was operated by the U.S. federal judge¹. The flight carried 238 alleged members of the Venezuelan prison gang Tren de Aragua, along with 23 people affiliated with MS-13²³. U.S. Secretary of State Marco Rubio also confirmed that over 250 members of Tren de Aragua were sent to El Salvador⁴.

 

While this is obviously not true, it is interesting that it was generated at all.  Perhaps the fact the District Court judge believes he has the authority to direct Federal aircraft would logically lead to the conclusion the Judiciary, and not the Executive Branch, "operated" the plane.

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Case note - California court rules against Bakery and Puts Statute Prohibiting Discrimination Above First Amendment Rights

 

California appellate court makes plain it considers First Amendment protections inferior to state-level statutes against discrimination

 

In Civil Rights Dept. v. Cathy's Creations (March 5, 2025, F08580) the Fifth District of  California refused to properly apply precedent upholding the breadth of First Amendment.  Recall that California all but gutted the First Amendment during the three years of the pandemic, caused by the release of the COVID-19 virus by a lab in Wuhan, China (reference:  the United States Department of Energy and the Central Intelligence Agency) and, indeed, California courts did little to stop the infringement upon freedoms guaranteed by the Bill of Rights.  Nonetheless, the lack of consideration given to the First Amendment in the recent Cathy's Creations opinion is troubling.  As the Fifth District framed the issue:

 

This appeal involves a bakery’s refusal to sell a predesigned white cake, popularly sold for a variety of events, because it was intended for use at the customers’ same-sex wedding reception. The State of California, through the Civil Rights Department (the CRD), filed suit on behalf of real parties in interest Eileen and Mireya Rodriguez-Del Rio (the Rodriguez-Del Rios) when Tastries Bakery (Tastries) refused to provide them the cake for their wedding pursuant to the bakery’s policy that prohibited the sale of any preordered cake for a same-sex couple’s wedding. The case culminated in a bench trial on the CRD’s claim of discrimination under the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (UCRA)), and the free speech and free exercise affirmative defenses of defendants
Tastries, Tastries’s owner Cathy’s Creations, Inc. (Cathy’s Creations), and Cathy’s Creations’s sole shareholder Catharine Miller (Miller) (collectively defendants).2
The trial court concluded there was no violation of the UCRA because the CRD
failed to prove intentional discrimination, and concluded Miller’s referral of the
Rodriguez-Del Rios to another bakery constituted full and equal access under the UCRA.
The trial court proceeded to consider defendants’ affirmative defenses as an alternative matter, and concluded the preparation of a preordered cake by defendants always constitutes expression protected by the federal Constitution’s First Amendment when it is sold for a wedding, and, as applied here, concluded the UCRA compelled defendants to speak a message about marriage to which they objected. . . .

 

One should further recall that in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (2018) 584 U.S. 617, the United States Supreme Court ruled a bakery could not be forced to make a cake it found offensive and that the Colorado state government had evidenced hostility toward the baker's religious belief when it attempted to force the baker to do so.  As Justice Kennedy succinctly stated, "[w]hen the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires."  However, the Fifth District did not apply the holding in Masterpiece so as to constrain the ability of California to fine and harass Cathy's Creations, explaining:

 

If the mere act of providing and/or delivering a predesigned product for use at a same-sex wedding conveys a message of celebration and endorsement for same-sex
marriage, a baker could potentially refuse to sell any goods or any cakes for same-sex weddings as a protected form of expression; but this would be a denial of goods and services that likely goes “beyond any protected rights of a baker who offers goods and services to the general public .…” (Masterpiece, supra, 584 U.S. at p. 632.) Expanded logically, this reasoning would extend to a whole range of routine products and services provided for a wedding or wedding reception, including those highly visible items like jewelry, makeup and hair design for the wedding party, table centerpieces, stemware and alcohol for a toast, and catering displays. This is tantamount to business establishments being “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”
(Id. at p. 634.) If mere product provision to a wedding is considered expressive conduct,
then all wedding vendors could potentially claim their refusal to serve same-sex couples. . . (Id., pp. 56-57.)

 

In other words, Cathy's Creations explained that California could not and should not actually apply the First Amendment, despite the Masterpiece holding from the United States Supreme Court, because if we do then we will not be able to enforce anti-discrimination laws. But this is exactly what the First Amendment does:  puts real limits on the scope of government powers and, of course, as Masterpiece held "anti-discriminaton" laws are not exempt from the purview of the Bill of Rights.

Analysis

 

Even if one were to factually distinguish this case from the cake-baking case ruled upon by the United States Supreme Court, the discussion and holding in Cathy's Creations is troubling.  First Amendment protections permit persons to refuse to voluntarily engage in actions which require speech and that they find offensive and/or violate their religious beliefs should be of the utmost consideration in terms of any court's legal analysis.  But Justice Meehan and his two colleagues dismissed application of these crucial limits on government power because to do so would render null a state statute prohibiting discrimination.  The justification was rather slim, resting on the silly notion that though baking a cake requires care and skill (and, as I would add, a bit of love) such care and skill is not "expressive:"

Because we conclude the cake defendants refused to provide in this instance was not an expressive activity protected by the First Amendment, defendants’ free speech defense fails. A huge number of routinely produced goods in the stream of commerce are designed with attention to aesthetic details that may reflect the designer’s sense of color, balance and perspective, and while those elements might be viewed as artistic features, they are primarily applied and intended for broad appeal and profitability—not as a medium for self-expression. While a routinely produced and multi-purpose cake like the one here might be baked and decorated with skill and creativity, we cannot conclude it is inherently expressive. (Id., p. 57.)

 

In other words, the Court's analysis is fundamentally flawed because it failed to apply the analysis mandated by Masterpiece.  Instead, it made it very clear a state-mandated prescription against discrimination must take precedence over Federal protections because, well, otherwise, the state law could not be given its full intended effect.  

 

This begs the question:  when will religious freedom and freedom of speech be restored to California?  And an even better question:  why do those who favor unlimited government power seem especially keen on harassing small businesses that do not have the resources to fight back?

 

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How not to negotiate - learning from the rank idiocy of Victor Zelensky (with valuable lessons for those under 50)

 

Zelensky's arrogant, delusional, and horrific performance tells us how not to negotiate.

Ladies and Gentleman:
 
In a vist to the Oval Office, Mr. Zelensky showed palpable disrespect for the United States of America and its taxpayers, who have been its benefactor to the tune of more than $200 billion dollars (or perhaps more than $300 billion as there is little transparency here).  Indeed, he verbally ambushed the President and Vice President of the United States by his hostility and impertinence. Prior to this press conference he reportedly refused to sign an already negotiated deal for production of valuable minerals and instead wanted security guarantees that would have put two nuclear powers in direct conflict, something that not even our senile former President and his wife, Dr. Biden, would have agreed-to.

As the brilliant historian Victor Davis Hanson has written, he attempted to correct both Mr. Trump and Mr. Vance by "Ukraine-spaining" in the most aggressive manner.  Indeed, while dressed in all black Mr. Zelensky gave a masterclass in how not to negotiate.  As someone who has negotiated countless legal issues over more than 30 years, let me explain what not to do as illustrated by the “President” of Ukraine:

* Make clear your lack of gratitude for prior support
* Cross your arms and refuse to unfold them
* Unless you are Johnny Cash, a female wearing a cocktail dress, or attending a funeral, wearing all-black
* Roll your eyes in an attempt to distract someone from the excellent point they are making
* "Ukraine-splaine," as Mr. Hanson puts it, under the assumption that anyone who disagrees with you must know less
* Assume someone 20, 30, or even 40 years older than you knows nothing whatsoever
* Threaten anyone in a superior position, let alone the President and Vice President of the United States of America
* Threaten your benefactor, here, the people of the United States of America;
* Interrupt anyone you are negotiating-with;
* Refuse to acknowledge your unequal bargaining power in an attempt to act "strong"
* Misrepresent your position by, for example, pretending you are supporting "freedom" when in fact you have suspended elections and civil liberties
* Acts as if you are a peer when in fact you are appearing as a supplicant.
 
This last point is important because as a gross simplification, I have found that the younger the person in our society today, the more unrealistic and overconfident they are.
 
Other the other hand, the video clearly shows how well Mr. Trump and Mr. Vance handled themselves and that our country is no longer willing to fund endless wars with ill-defined objectives. 
 
As has oft been said in the past few months, America is back.
 
Ukraine and its deluded Zelensky, not so much.

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Unconstitutional Interference by the Judicial Branch in the day to day operations of the Executive Branch

Crucial Constitutional issues as to separation of powers may need to be resolved by the United States Supreme Court

For the past month, we have seen President Trump undo, and then some, a series of executive orders from President Biden.  Most (but not all) of the orders Biden put in place were not challenged because even if one maintained they were wrong-headed, they mostly involved how the Executive Branch functioned, something the President may issue orders regarding, as noted in the discussion below of Article II.  

 

But during this past month, dozens of trial court judges, authorized only to consider cases in their "District Court" as one of 677 nationwide "judgeships" authorized by Congress, have issued "injunctions" telling the President of the United States what he can and cannot do, including orders relating to how money is spent, what employees do what, and how regulations are to be and not to be interpreted.  Though these orders mirror, in large part, the promises made to those who voted for President Trump, these orders have been "frozen" by local Federal Judges who have issued injunctions that apply to the entire Federal government, nationwide, and even to the actions of the President himself. 

But does Article III give the Judicial Branch sweeping powers to control, and some would even say supervise, the Executive Branch by way of orders (styled as injunctive relief) telling the Executive Branch what to do in terms of its core functions, even going so far as to telling the Executive Branch what its personnel may and may not do and how money is disbursed? 

Article II, of course,  grants extensive powers to the Executive Branch, and while these powers are not unlimited, there does not even appear to be even a hint that the Judicial Branch is expected to supervise the Executive Branch any more than the Executive Branch is granted the power to supervise the Judicial Branch:

Section I

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

. . .

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.(Emphasis added.)

Article III, of course, grants certain powers to and, more importantly, denotes the jurisdiction of the Federal Judiciary.  In reading such note the lack of any authority to direct the specific actions clearly within the scope of the Executive Branch, such as how the military treats its enlisted soldiers and what benefits, including health care, soldiers are to be given:

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. . . .

(Emphasis added.)

Some will argue Marbury v. Madison (1803) 5 U.S. 137, the seminal opinion on judicial review of a federal statutes written by Chief Justice Marshall, gives the judiciary the power to review just about any action by the Executive Branch.  But the very fact these people — who believe an unelected trial court judge may issue an injunction directing the actions of the duly elected President of the United States, and his subordinates, to do or not do something — cite to Marbury and not the Constitution itself is very telling.    

This citation is, in fact, an admission that the Constitution does not give a sole trial-level judge any such power, and such power must be derived from Justice Marshall’s opinion as to his own power as a Supreme Court justice.

What can and should be done to curb invasive micromanagement of the executive branch by the judicial branch?

At some point, the United States Supreme Court will need to consider the scope of the power of a single trial-court-level judge to provide detailed guidance to the President of the United States on what he may or may not do in terms of disbursing funds and other matters ordinarily considered the province of an executive.  In the meantime, it is interesting to note that the Executive Branch has, up to this point, not yet returned the favor.
 
Meaning the Executive Branch has not yet issued Executive Orders providing detailed instructions to the Judicial Branch in the same manner the latter has done to the former.  It would be interesting to see the reaction of these trial-court Judges and, even more so, appellate Justices and the Chief Justice of the United States Supreme Court, John Roberts, to equally detailed and invasive instructions from the Executive Branch directing the actions of the Judicial Branch. 
 
For example, one could only imagine the reaction if an Executive Order were given which in turn micromanaged how the Judicial Branch spent its money and/or operated its courthouses.  The judiciary would no doubt respond by striking down these orders from this or any other President. 

It remains to be seen, then, if they will set any limit upon themselves and the desire of local judges to control the day-to-day operations of the Executive Branch.

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The Two Most Important Unanimous Supreme Court Decisions of 2024 Have One Thing in Common

In our last post, "Six of the most important California and Federal Appellate Opinions of 2024," (https://appellatespectator.blogspot.com/2025/02/six-of-most-important-california-and.html)

we noted two unanimous United States Supreme Court opinions in 2024 which broadly interpreted the Bill of Rights:

1.  National Rifle Association v. Vullo (May 30, 2024) no. 22-842

 
https://appellatespectator.blogspot.com/2024/06/nra-v-vullo-unanimous-supreme-court.html

 

2.  Sheetz v. County of El Dorado, No. 22–1074 (April 12, 2024)

https://appellatespectator.blogspot.com/2024/04/breaking-news-supreme-court-rules.html

What is so remarkable about these two decisions is not only that they were unanimous, nor that Justice Sotomayor wrote a strongly-worded opinion against government overreach against individual freedom of expression where these individuals utilized a corporate entity to express these viewpoints.  What is most remarkable is  how wrong-headed the lower courts in the respective states of California and New York were.  Worse, appellate courts were shockingly stubborn in not addressing blatant legal errors even when presented the clear opportunity to do so upon appellate review. 

This is even more shocking because, in an era of Westlaw, Lexis/Nexis, and, ChatGPT, one may find relevant precedent in seconds.  Which means a court and its research attorney may find such precedent instantly as well.  So why did courts in New York and California risk being overturned by a unanimous United States Supreme Court when a quick ChatGPT search would have revealed adverse authority in mere nanoseconds?

A cynical answer might be the tendency of our courts, as part of the apparatus of power, to uphold decisions of others likewise in power.  But I think another answer is equally obvious: political bias and the desire to hold on to his bias is so strong it outweighs the risk of being declared wrong in a nationwide public forum by Justices from both sides of the aisle and from different backgrounds and judicial philosophies.

For example, California government is biased against those with private property who wish to do something with their property; in particular, there is a bias against private single-family homeowners, including those who wish to something as simple as build a house without paying rapacious fees.  Likewise, New York and its Attorney General, Letitia James, are so biased against those who argue for their Second Amendment Rights that that the First Amendment be damned — these people must be stopped from joining together to speak.  

Lessons for practitioners

 

This begs the question of what to do when faced with a lower court, or, even worse, a Federal Court of Appeal, that ignores prior precedent due to its bias against interpreting the Bill of Rights to favor citizens rather than the government.  The obvious answer is to stress precedent after precedent to show the long arc favoring applying the Bill of Rights as a constraint against the massive power of cities and states.

 

Another important consideration may be the use of amicus briefs to show that, for example, there is a consensus in favor of giving effect to the Fifth Amendment’s "takings clause" to prevent imposition of a "fee” which has no relation to the supposed service provided.  But even this is may not be enough, because in the case of the National Rifle Association case, lower courts would not fully take into account important First Amendment issues even though the plaintiff’s case was supported by numerous organizations, including the American Civil Liberties Union.

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