Chief Justice Roberts has stepped out of the shadows, so to speak, and since I find him to be the most interesting cipher currently on SCOTUS, it’s worth mentioning it. From the AP:
In a highly unusual public statement, Chief Justice John Roberts rebutted President Donald Trump’s statement that a ruling against the administration was made by “an Obama judge.”
Asked Wednesday by the Associated Press about the president’s comment, Roberts responded, “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.”
He added on the day before Thanksgiving that an “independent judiciary is something we should all be thankful for.”
Needless to say, Trump wouldn’t be reprimanded by such a lowly entity as Chief Justice Roberts:
[tweet https://twitter.com/realDonaldTrump/status/1065346909362143232]
Thus speaketh President Irrelevancy.
It’ll be interesting to see how the conservatives and the GOP (essentially two completely different entities at this point) reacts to the Chief Justice’s remarks. I suspect the former will cheer, and the latter will revile him as an apostate and even a liberal. It’s not much of a prediction, really, but I don’t see anything up on National Review (pro-Trump), The Resurgent (never-Trump but otherwise far right wing), nor The American Conservative (dunno). However, Joseph diGenova of Fox News has already begun to cast stones:
The spectacle of the ostensibly nonpolitical chief justice engaged in a dispute with the president of the United States is insulting to the Supreme Court and to our system of justice.
Shame on the chief justice. What he did is unforgivable, especially after the corrosive Senate confirmation battle over now-Supreme Court Justice Brett Kavanaugh, who was the subject of bitter and baseless partisan attacks and character assassination by Senate Democrats.
With everyone looking for ways to remove the high court from the political thicket, Roberts strode arrogantly right into it. Sad day.
He thinks Roberts caved to criticism from Democrats, which is a laughable claim. The balance of his column shows he’s either glossing over the travel ban history – or ignorant of it. More importantly, there’s an implicit contradiction in using the 5-4 SCOTUS decision permitting the travel ban to come into effect to condemn the 9th Circuit, and then turn around and claim Roberts, who voted to permit the travel ban and was, presumably, impervious to Democrat opinion, must have caved in other decisions, such as the ACA ruling, that didn’t go diGenova’s way. Perhaps diGenova should consider the possibility that the law and Constitution simply dictated Roberts’ decision. I know, that’s a bit radical of me.
Paul Mirengoff on Powerline thinks there are Obama and Bush judges:
The questions of whether it matters who appointed a federal judge and whether such judges view litigants, including President Trump, with equal regard in any meaningful sense are empirical ones. If one can predict with a high degree of accuracy how a judge will rule in a highly controversial case, or in a case challenging a Trump edict the left doesn’t like, just by knowing which president appointed that judge, then Roberts’ defense of the federal judiciary fails.
That’s a more interesting observation. However, and speaking as non-lawyer, laws are quite often loaded with ambiguous specifications, some of which can be interpreted as contradicting the Constitution, a document itself subject to divergent interpretations. Mirengoff may consider consistent readings as illicit when they’re simply a consistent manner of interpretation of ambiguities. It doesn’t make them liberal nor Democratic per se, but simply as a matter of interpretation. Think of it this way: in many sports, the interpretations of the rulebook are an integral part of the sport, and oft-times those rulebooks, even seemingly well-written rulebooks, are chockful of ambiguities. Let me take a semi-hypothetical case from fencing, which states that when a fencer retreats behind his own end line, the action will stop, his opponent is awarded a touch, and the fencers will return to their en garde lines, unless the opponent has reached the goal of the bout, in which case the bout ends in the opponent’s favor. Furthermore, retreating behind the end line occurs when both feet are behind it[1]. Sounds rock-solid, doesn’t it? Well, suppose this: one fencer executes an attack, the other fencer leaps back, evades the attempted touch, scores a touch of her own on the attacker while still elevated, and then lands with both feet behind the end line. Whose touch is this? Depends on how you interpret the rule, doesn’t it? Is she off the end of the strip when she lands, or when both feet are beyond an invisible plane perpendicular to the strip, connecting to the end line? (Now imagine the fencers are tied and this touch decides the winner of the gold medal bout at the Olympics!)
That was delightfully indulgent for me. To return to my point, anyone involved in heavily refereed sports will tell you that consistency of interpretation is almost as important as the interpretation being consistent with the rulebook’s text. When judges present consistent interpretations, and even consistent interpretative styles, this should not be immediately considered a symptom of a core intellectual deficiency in the judge’s understanding of the law, but rather a positive attribute of the judge, in and of itself, because I suspect lawyers faced with a judge who is erratic in his rulings will tell you this is a far worse thing than a conservative or liberal judge – and a trial lawyer is already faced with the inherently unpredictable factor of the jury. The last thing they need is a judge who varies interpretation from moment to moment.
In fact, absent evidence that a judge or even a category of judges are actually issuing judgments inconsistent with the law, my opinion of the whole Obama / Bush / Trump judge thing is that it’s the first step down the pathological path of condemning an entire class of judges, fracturing the judiciary, and then politicizing the same. This would be a step that any national-level adversary, such as Russia, China, or ISIS, would embrace with hisses of delight.
The fact of the matter is that if a given Federal judge is consistently issuing judgments at variance with the Constitution & the law, we have a mechanism available to be rid of him or her: impeachment. Mirengoff’s opinion, I think, mistakes disagreement for pathology, and results in a political course detrimental to health of the polity.
So will there be a tangible change in the Chief Justice’s rulings? Hard to say. He surely must realize his Party of old has been overcome by the corruption at its core, but he may continue on with his own ideological roots, as they color his rulings.
But it definitely means that decisions with a strong political factor may be less certain in their final disposition. For instance, the very recent Federal ruling invalidating the abortion law in Mississippi is certainly headed for SCOTUS – but it may not be heard, if the Chief Justice decides Roe v Wade really is settled law, no matter what the other four conservative Justices think. Or it may be heard – and he’ll choose to side with the liberal wing.
In the end, the Chief Justice had no choice but to issue a defense of the Judiciary, because it is one of the pillars of American society. A strong, high-morale judiciary is an important & critical part of American society. Persistent, decades-long mutterings against it on the conservative side of the spectrum has served to fracture it to some extent, which is unfortunate as no major political party’s interests are truly served by a chaotic, ineffective judiciary. Its chronic understaffing, also the responsibility of a recalcitrant GOP determined to politicize a judiciary that has acted as a restraint on its pathological ideology, is another problem, and while it’d be good to see it properly staffed with a qualified collection of judges of either brand, the collective quality of judicial nominees presented by President Trump has been far below the required standard, or at least so qualified observers have noted (I must go with expert opinion, although some nominees have obviously been so unqualified that even the GOP Senators rejected them); that is, the judiciary staffing approved by Senators Grassley and McConnell will be seen, in the light of the disinterested historian, as another black mark against them.
Will there be continued verbal joust? I doubt it. Roberts has made his point, and his defenders should now rush to the redoubts. They should be both liberals and conservatives, because this was an attack on an essential of American society, just as much as the free press is an essential. Without a high quality judiciary which makes consistent interpretations of law and Constitution, we’ll descend into chaos. We’ll be lorded over by amateurs and second-raters. We’ll just be another banana republic, ruled by self-righteous incompetents who think their ideology or religious faith or immaculate intellects justify any action they take, regardless of the law.
But one prediction I will make: At some point, President Trump will attempt to remove a judge he particularly despises through Executive Order, i.e., autocratic fiat. If & when that happens, there’ll be a lawsuit, and when it makes it to SCOTUS, it is imperative that they rule swiftly (i.e., within an hour) after arguments, the decision should be 9-0, and the text of the ruling should be “No, <relevant constitutional section cited>, piss on you, President Trump. Speaker of the House, begin immediate impeachment proceedings. Senator McConnell, we’ll see you in SCOTUS chambers immediately.”
OK, won’t happen. That last part is a bit too imperious. But it’s what should happen. McConnell has been far too busy destroying the United States while in pursuit of his personal goals – or those of his backers.
1 I say this is a semi-hypothetical example because I haven’t read the USFA rulebook in at least a decade and probably more, so perhaps I’m out of date. Having attended a fencing referee’s seminar and a sabre referee’s short & informal seminar, I know that much of the seminars were devoted to interpretation, so I remain certain the spirit of this example is true.
