Rep. Johnson To Chief Justice Roberts: Democracy Under Category Six Code Red, Six-Alarm Fire

'My hope is waning. Time is running out for hope, for justice, and for democracy itself'

WASHINGTON, D.C. —  Today, Congressman Hank Johnson (GA-04), ranking member of the Judiciary Subcommittee on Courts, Intellectual Property, Artificial Intelligence and the Internet, delivered the following remarks before the Judicial Conference, which convenes twice a year to consider administrative and policy issues affecting the federal court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch. It’s presided over by Chief Justice John Roberts.

“Thank you all once again for inviting me to speak at the opening of the Judicial Conference. As you know, I have long respected this institution and its traditions. My respect for our third co-equal branch remains, even as our democracy is increasingly thrown into chaos.

“I will not mince words today: Under the current administration, our Rule of Law is at a Category 6 code red, six alarm fire. With a cultish congress rubber stamping the excesses of a President who disrespects and disregards the Constitution laws of our country, Americans are looking to the federal courts for salvation, and without a change from our federal courts, I worry for the future of our democracy.

“Years ago, during the last Trump administration, I sat in this room and listened to then-Attorney General Bill Barr tell the Judicial Conference it needs to “do something” about “all those nationwide injunctions” stopping Trump’s wish list from being fulfilled. And you know what? Clearly Mr. Barr was heard.

“This year, the Supreme Court limited preliminary injunctions in CASA v. United States. But it has continued to reverse preliminary injunctions even in those limited cases where they are still allowed, allowing the Trump administration’s attacks on the rule of law to proceed as cases challenging seemingly unlawful and/or unconstitutional acts make their way through the federal court system. By the time the cases reach the Supreme Court for final review the Court will find it impossible to undo the damage that will have been done to our democracy. Alarmingly these reversals of well considered decisions by lower courts have repeatedly occurred through the emergency appeals process, with very consequential, effectively final decisions handed down through the Shadow Docket. No consideration on the merits. No reasoned analysis. Just decision after decision reversing lower court decisions—to favor the Trump administration.

“Many of us in Congress understand the threat to democracy posed by the current administration. Refusing to spend monies appropriated by Congress; shuttering agencies established by Congress; removal of heads of independent agencies who are protected by statute from summary dismissal; the firing of civil servants without cause; deporting American citizen children with their parents; sending the national guard into American cities; greenlighting racial profiling in immigration enforcement. Each of these overreaches, left unchecked, erodes our democracy.

“In light of these threats to our Rule of Law, Americans are looking to the judicial branch for salvation from an overreaching executive. Yet for some strange reason, there is a reluctance from those at the top to follow established law and precedent. You are an institution that values tradition, precedents, and wise moderation, and yet your reticence to allow injunctions to stand in clear cases of executive overreach has resulted in an even-more reckless and unchecked executive while challenges to his overreach remain pending.

“Federal judges blocking the administration have been clear about what is at stake. In an order barring a man’s deportation under the Alien Enemies Act earlier this year, a President George W. Bush Appointee wrote, “Allowing constitutional rights to be dependent upon the grace of the executive branch would be a dereliction of duty by this third and independent branch of government and would be against the public interest.

“It is unclear why the Supreme Court has repeatedly permitted unconstitutional executive branch actions to continue. But we would be unwise to assume that laypeople don’t understand what is happening. Americans can see the President’s repeated incursions on our separation of powers, and the destruction of the delicate system of checks and balances upon which our well-functioning democracy has worked for 249 years. According to a Gallup Poll conducted at the end of last year, public confidence in the courts had dropped to a record low of 35 percent.

“I don’t need to tell the people in this room that the judiciary’s authority comes neither from power of the purse, nor of the sword, but from the public trust in its ability to be above the politics of the day. While I have not always agreed with the decisions of the court, I have long held out hope that the Supreme Court will overcome politics and come through for us when it matters most.

“Like many Americans, my hope is waning. Time is running out for hope, for justice, and for democracy itself.

“If those responsible for saying what the law is—if the ultimate arbiters of the law in our country—don’t maintain the trust of the American people, where does that leave democracy? When Donald Trump declares martial law and sends Congress home, what will the Court do, after again and again cowing to this administration? 

“I don’t know the answers, but I know the place we can start. We all represent the American people in different ways. And we are responsible for reestablishing the trust that has been lost. I cannot in good conscience continue to blindly adhere to tradition in the face of that code red six-alarm fire.

“When Bill Barr told the Judicial Conference that it needed to do something about those nationwide injunctions, the American people had no idea that Bill Barr, the top lawyer for the nation, was communicating ex parte with members of the judicial branch on a substantive issue, on behalf and to the benefit of the then President. And that’s because the Attorney General could come in here in secret and tell the courts what the administration wanted it to do, and no one would ever know. This part of Judicial Conference meetings where the conference hears from legislators and executive branch officials—needs to be public, to eliminate ex parte communications and to give Americans insight into who in the administration is advocating for the Court to change the law. I know of no reason why this part of Judicial Conference meetings needs to be done in secret, and I for one, will be publishing my remarks later today.

“The Judiciary has run out of time for tradition, and pomp and circumstance. You need to reestablish the trust that has been lost. And you have my commitment that I will do everything I can to protect the independence and integrity of the courts, and to provide for the safety of justices, judges, and for those who work for the federal courts. 

“Thank you again for inviting me to speak today, and I wish the Judicial Conference a productive September meeting.”

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