We hear little about the third leg of the government triad, the judiciary, so Professor Michael Dorf’s suggestion on Justia that Chief Justice Roberts may be a Never-Trumper is interesting – although he thinks it isn’t significant:
… but I have a hypothesis: In this and other modest ways, Roberts hopes to counterbalance Donald Trump; he may be a closeted never-Trumper. …
At the end of his report, Roberts returns to the Federalist Papers to celebrate but also to warn “we should also remember that justice is not inevitable. We,”—by which he means his judicial colleagues—“should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity, and dispatch.”
In many contexts, such sentiments would be clichéd. But here too it is fairly easy to read between the lines and see a not-so-veiled critique of the President. Why isn’t justice inevitable? Whom do life-tenured judges have to fear? In our time, the answers to the second question and thus the first are clear: a President who demonizes and seeks to delegitimize all institutions and individuals who invoke laws and norms to block his own venal and fickle will.
But …
First, no one should think that the resistance Roberts offers to Trump indicates any kind of a turn to the left. At best, Roberts leads from within the judiciary a muted version of the never-Trump movement that one sees among principled never-Trump conservatives like George Conway and the other lawyers who comprise the Checks & Balances organization. These brave souls rightly regard Trump as a threat to core democratic values that transcend party. …
Second, the Roberts defense of judicial independence has the capacity to mislead. In truth, there are “Obama judges” and “Trump judges,” not in the crass sense that Trump uses the terms but in the important sense that the party of the President who appoints a judge serves as a pretty good proxy for that judge’s likely ideological lean over the long run. When John Roberts describes the federal judiciary as unaffected by any prior party affiliation, he strikes a blow for the rule of law, but he also tells a not-so-noble lie. …
Third, as I have noted already in this column, the Roberts criticisms of Trump are muted and sometimes barely even perceptible except by extrapolating from hints. Against an opponent like Trump—who lies loudly and generally fights dirty—a Chief Justice who observes the norms of his office and human decency may find himself at a distinct disadvantage in reaching the general public due to the very tools of deceit that the annual report laments.
It’s not usual for the judiciary to actually become part of dirty, nasty fights, and that’s what it take for the Chief Justice to truly express such a sentiment, if he does in fact harbor such sentiments. Nor is it really clear how he would get involved, at least not to me.
So it’s not really worth getting all that excited, except to note that Roberts does appear to be more of an old-fashioned conservative, rather than the new, radical line that merely exists under the name ‘conservative,’ while actually being quite something else.
