The Chief Justice of the United States, John Roberts, is never going to be the leader of “The Resistance,” fighting back against Donald Trump’s lawless presidency. He’s likely never going to be another one of those justices who begins to lean left after years on the Court, either. But if he joins with the Supreme Court’s four liberals in the coming months and years, he can thwart every pending or future effort by the White House and Justice Department to obstruct Special Counsel Robert Mueller’s investigation into the Trump team’s Russia ties.
Trump knows this and knows, too, that a Democratic-controlled House of Representatives is going to expedite the arrival of legal showdowns over his financial records, the corruption within his cabinet, and even Mueller’s work. All of which explains why the president tried so hard over the weekend to undermine the independence and integrity of the judiciary after the chief justice tried to defend it. The president wants to drag into his muck Roberts, and by extension the Court itself, so that Trump can label the adverse decisions to come (and trust me they will come) as just another move by his political enemies.
The dispute began when Trump criticized a federal judge on the 9th U.S. Circuit Court of Appeals who ruled against his asylum policy, calling him "an Obama judge." Roberts responded in comments to the AP:
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Trump, eager to have the last word, tweeted that Roberts "can say what he wants, but the 9th Circuit is a complete and total disaster," and "out of control."
Trump is pretending that the fight is over the ideological bent of the 9th Circuit, long a target of conservatives who believe what they hear on Fox News about the federal appeals court issuing too many “liberal” decisions. It is an argument that is as convenient and familiar as it is unsupported by the evidence. The 6th Circuit and 11th Circuit, composed of Southern and Midwestern states making up the heart of Trump country, were overturned more often from 2010 to 2015 than was the West Coast’s 9th Circuit. You’ll see no Trump tweets about them.
Roberts’s defense of the federal judiciary did not focus on geography. It focused on perceptions of politics and ideology. And it represented more an example of wishful thinking about an ideal world of judging than it does about the practical realities of our time.
Roberts is right that we should be thankful for an “independent judiciary” and should do all we can to insulate it from legislative and executive attacks by this White House and its fellow travelers. But the truth is that we do have “Obama judges” and “Trump judges” and “Bush judges” and that these judges have been nominated by presidents precisely because of how their ideologies track their jurisprudence. It is also true, as we are about to be reminded, that there are some legal issues that can and should transcend these ideological lines — like holding a president accountable to respond to a duly issued federal subpoena, for example.
No one in American government today is more insulated from Trump’s baseless criticism than Roberts. He is life-tenured. He is Republican-appointed. He has been a reliable conservative vote on the court for more than a decade. He helped give conservatives access to their dark money in political campaigns via Citizens United and then a few years later helped them suppress Democratic votes by killing the preclearance provision of the Voting Rights Act. Yes, he helped save the Affordable Care Act, not once but twice, which, on that issue, put him on the right side of history and the wrong side of the Federalist Society.
Everything about this episode is about Trump’s penchant for projection. Because he expects his nominees to be loyal to him first, he believes that every past president so burdened their own nominees, including especially their Supreme Court nominees. Because Trump expects his judges to, indeed, be “Trump judges,” he thinks Barack Obama made the same devil’s deal with Elena Kagan and Sonia Sotomayor and that George Bush put the fix in with John Roberts back in 2005. It’s as insulting to the past presidents as it is to the justices, but it explains why Trump now is picking a fight with the Supreme Court through the leader of the federal judiciary.
The good news for the rest of this is that John Roberts, for all his many faults and biases, is not going to play Trump’s dirty game. The even better news is that Roberts, and the rest of the justices, won’t likely have to contort his politics and ideologies to support rulings from lower federal court judges that begin to hold Trump more accountable — never mind the legal norms that the Trump administration has undermined or destroyed since January 2017. We are now entering the realm of actual law, and evidence, and precedent, and in many instances the White House will be playing defense on shaky ground.
Maybe it starts with a Mueller subpoena. Or maybe with House Democrats and tax returns. Or maybe the case of our bogus attorney general, Matthew Whitaker, will trigger the first definitive Supreme Court ruling that brushes back Trump’s excessive use of executive power. If and when that day comes, and the chief justice sides with those who side against the president, you can expect Trump to unload a volley of sound and fury toward Roberts and the court. But it will signify nothing, or at least nothing more than a litigation loser’s lonely lament. The truth is that John Roberts is smarter and stronger than Donald Trump is or ever will be.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.
(Image: Jim Lo Scalzo/Getty)