Vice-President J. D. Vance offered some unsolicited advice to Chief Justice John Roberts the other day: the federal courts need to be more deferential to Presidential authority, and the Supreme Court must do a better job of keeping lower-court judges in line. Vance was speaking to the New York Times’ Ross Douthat about the Trump Administration’s nearly unbroken string of court losses in immigration-related cases. These setbacks, in Vance’s telling, represent an undemocratic project by some federal judges to undo the election results.
“I know this is inflammatory, but I think you are seeing an effort by the courts to quite literally overturn the will of the American people,” Vance told Douthat. He referenced a recent interview with Chief Justice Roberts, in which Roberts said that one role of the Court is to check the excesses of the executive. “I thought that was a profoundly wrong sentiment,” Vance said. “That’s one half of his job. The other half of his job is to check the excesses of his own branch. You cannot have a country where the American people keep on electing immigration enforcement and the courts tell the American people they’re not allowed to have what they voted for. That’s where we are right now.”
To quote Vance, this diagnosis is “profoundly wrong.” It misconceives the essential role of the judiciary, which is to superintend the division of powers among the three branches of government—in fact, Roberts said that the Court’s job is to check excesses of both Congress and the executive—and, just as important, to preserve individual rights against governmental overreach. In fact, the courts have been diligently performing their constitutionally assigned role, and polling suggests that the American people are happier with the judiciary’s performance on that score than they are with President Donald Trump’s.
Vance’s comments are not the product of ignorant bluster (for this, see the recent assertion by Kristi Noem, the Secretary of Homeland Security, that “habeas corpus is a constitutional right that the president has to be able to remove people from this country”). Vance is a graduate of Yale Law School, and his wife clerked for the Chief Justice. He surely understands that Roberts—the author of Trump v. United States, the 2024 ruling on Presidential immunity that is perhaps the broadest grant of executive authority in the history of the Court—is no foe of Presidential power but one of its fiercest advocates. Yet Vance has for years been picking an argument with the Chief Justice over the legitimacy of federal court orders. If Vance were giving Trump one piece of advice, he said in 2021, it would be to “fire every single mid-level bureaucrat, every civil servant in the administrative state. Replace them with our people. And when the courts—because you will get taken to court—and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’ ” Roberts warned against remarks like these in his latest year-end report on the federal judiciary, saying that “elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.”
The dispute assumed higher stakes after Trump took office, and federal courts across the country started to push back on the new Administration’s behavior. “Judges aren’t allowed to control the executive’s legitimate power,” Vance posted on X on February 9th. His exchange with Douthat represents another escalation of the Administration’s anti-court rhetoric. Vance’s argument—that judges are not simply treading on the President’s constitutional authority but actively frustrating the will of the electorate—is, at bottom, a repudiation of the constitutional structure. It is “emphatically the province and duty of the Judicial Department to say what the law is,” as Chief Justice John Marshall put it in Marbury v. Madison—even when, and perhaps especially when, its conclusion is unpopular. That is the reason federal judges are not elected and are granted lifetime tenure. Alexander Hamilton termed this arrangement “the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
Of course, it is not healthy if courts consistently find themselves far out of step with the country, as Justice Elena Kagan noted at a judicial conference in 2022, following the tumultuous term in which the Court eliminated the right to abortion. If the Court “loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” she cautioned. Still, Kagan said, “By design, the court does things sometimes that a majority of the country doesn’t like.” Vance ignores this counter-majoritarian imperative.
To his credit, Vance conceded to Douthat that “illegal immigrants, by virtue of being in the United States, are entitled to some due process”—a welcome contrast to the false claim, by the White House deputy chief of staff Stephen Miller, that “due process guarantees the rights of a criminal defendant facing prosecution, not an illegal alien facing deportation.” But acknowledging a right to review is not the same as providing it, and the Administration has seemed almost frantic to deny any semblance of due process to those being targeted for removal. Just this week, yet another federal judge ruled in yet another immigration case that the government had violated his order, by failing to provide migrants from third countries with a “meaningful opportunity” to contest being sent to South Sudan. The migrants “had fewer than 24 hours’ notice, and zero business hours’ notice, before being put on a plane and sent to a country as to which the U.S. Department of State issues the following warning: ‘Do not travel to South Sudan due to crime, kidnapping, and armed conflict,’ ” the judge noted.
Or take the litigation over the Alien Enemies Act, a 1798 law that applies only when there is a “declared war” or an “invasion or predatory incursion” by a foreign nation. The Administration first issued an executive order invoking the law in secret, apparently intending to avoid interference from lawyers as it prepared to deport alleged members of the Tren de Aragua gang to El Salvador. (“I take issue that it’s an aggressive interpretation,” Vance told Douthat.) Then it tried to flimflam U.S. District Judge James Boasberg, by continuing to fly detainees to El Salvador even after he ordered that they not be removed. A month later—after the Supreme Court made clear that “detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal”—the Administration gave detainees a scant twenty-four hours warning that they could be deported, told them nothing about their right to go to court, and loaded them onto buses headed to an airfield. The Supreme Court intervened to halt the action. Such a skimpy notice “surely does not pass muster,” the Court ruled, with only two Justices dissenting.
The list of those seized, held, and in some cases deported without due process is long and growing. It includes Rümeysa Öztürk, a Turkish graduate student at Tufts University arrested by six masked agents after publishing an op-ed criticizing Israel in the student newspaper. Özturk, whose visa had been revoked without her knowledge, was moved from Massachusetts to Vermont to Louisiana, and was not able to speak with her lawyer or inform anyone where she was until nearly twenty-four hours after her arrest. Charged with no crime or immigration violation and posing no danger to the public, Özturk was ultimately detained for more than six weeks, until a federal appeals court intervened.
