The Supreme Court normally avoids politics. But Trump has pushed the chief justice too far.
Supreme Court justices make a point of not commenting on politics, much less responding to things politicians say. But President Trump has finally annoyed Chief Justice John Roberts enough for Roberts to speak out.
Roberts issued a statement Wednesday in response to Trump derisively referring to a judge who’d blocked his asylum ban as an “Obama judge.” (President Obama nominated Judge Jon Tigar in 2012.)
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in the statement (which was sent by the Supreme Court in response to an inquiry from the Associated Press). “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.”
The statement itself sounds like boilerplate. And it is. The remarkable thing is that it was issued at all. Roberts didn’t need to respond to the AP’s inquiry; most officeholders, especially those generally allied with the president, are extremely used to ignoring Trump’s more inflammatory statements.
Trump clearly does see the judiciary in terms of “Obama judges” and “Trump judges.” His biggest accomplishment, in the eyes of the conservative movement, is the appointment of two Supreme Court justices in his first two years in office — with both Neil Gorsuch and Brett Kavanaugh expected to be reliable conservative votes for decades to come.
Trump’s pace of appointments in lower levels of the federal judiciary — district and circuit court judges — is even more impressive: As of the end of July, one in every seven circuit court judges was a Trump appointee, and more have been appointed since.
At the same time, the federal judiciary, especially the Ninth Circuit, has been the single biggest stumbling block for Trump’s agenda. His administration often operates by the principle of taking executive action first and daring judges to find it unconstitutional; the Ninth Circuit and the districts it encompasses have been all too happy to comply.
Conservatives have long mocked the Ninth Circuit for being too liberal, often exaggerating to make it seem like a rogue circuit the Supreme Court has to rein in. Trump, unsurprisingly, has taken those attacks a step further.
Indeed, compared to, say, Jeff Sessions’s attacks on a Hawaii judge “on some island in the middle of the Pacific,” or Trump’s browbeating in 2017 of a judge who he felt was taking too long to rule on the first version of the travel ban — not to mention Trump’s racist attacks on Judge Gonzalo Curiel during the 2016 presidential campaign — calling Tigar an “Obama judge” is pretty tame.
But the flip side of Trump attacking judges as “Obama judges,” as Roberts noted in his statement, is seeing the judges he himself has appointed as “Trump judges.”
That carries the expectation of loyalty — something that Trump is known to expect from everyone, over and above the dictates of law and policy.
When Gorsuch was awaiting confirmation, he criticized a Trump attack on a judge and stood up for the independence of the judiciary. Trump reportedly didn’t like that. Trump’s second nominee, Brett Kavanaugh, notably declined to do anything of the sort, instead obsequiously praising Trump in a speech when he was nominated.
Trump has already expressed frustration when Gorsuch ruled against his government on an immigration case (serving as the fifth vote to tip the decision against the administration). He has made his expectation clear: Judges should be expected to support presidents of the party that appointed them.
Generally, that’s going to be the case in terms of jurisprudence. Whatever concerns Roberts has about the independence of the judiciary, it’s worth noting that his last major opinion was siding with Trump in the travel ban case — in a ruling that conspicuously lacked any articulation of limits on executive power. (This is what emboldened Trump to issue the asylum ban now being challenged.)
Roberts issuing a rhetorical brushback is unusual enough to indicate he might be genuinely concerned about Trump.
But it’s not at all clear that he’s going to start thinking about Trump the man when asked to rule on cases about Trump the president.
