It was interesting to watch the back-and-forth last week between President Donald Trump and Supreme Court Chief Justice John G. Roberts Jr., but it didn't seem as if Trump got the message Roberts was trying to send — nor did it seem as if the president understood the nuances of the civics lesson the justice was attempting to deliver.
Nevertheless, for those of us who keep an eye on the doings of the Supreme Court, the volley of words between Trump and Roberts was remarkable, in large part because it marked the first time that the chief justice had responded to the president's escalating attacks on the federal courts.
It started when Trump called a judge who had ruled against his administration's asylum policy an "Obama judge."
Roberts had elected in the past to shrug off these attacks — and we can debate among ourselves whether it would have been wiser to continue that policy. But, for whatever reason, when The Associated Press asked Roberts last week for a comment on Trump's "Obama judge" crack, the justice offered one, suggesting in a written response that the president simply didn't understand the role of the judiciary.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in his statement. “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, of course, wanted the last word: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’” the president responded on Twitter, “and they have a much different point of view than the people who are charged with the safety of our country.”
Roberts chose, perhaps wisely, not to rise to the additional bait Trump offered, but it's worth taking some time to take a deeper look into this dust-up.
For starters, Roberts is not an "Obama judge," since he was appointed by President George W. Bush. Despite his conservative credentials, he has emerged as a chief justice who puts an emphasis on attempting to build consensus rulings among his colleagues on the court, although the number of 5-4 decisions the court hands down is testimony to how difficult that task can be.
More interesting, perhaps, is the fact that the arrival of Trump's two appointees to the court, Neil Gorsuch and Brett Kavanaugh, places Roberts more firmly in the ideological center of the court. As the court's current term continues, it may become apparent that Roberts now holds the position that had belonged to longtime court swing vote Anthony Kennedy, who retired in July. Now, some argue that Kennedy had drifted to the right in his last few years on the high court, so we might not see that much immediate difference in the tenor of the court's rulings — even though Roberts has occasionally joined in with his more liberal colleagues in certain cases.
Trump likely took none of this into account when he ripped into the federal judiciary last week. Our guess here is that he was irked by the fact that his administration's policies frequently take a beating in the federal courts. But it's worth remembering that the judges who have administered those beatings were appointed not just by President Obama, but by Republican presidents as well. It's likely that Trump mainly wants a more compliant federal judiciary (this would explain his occasional talk about splitting up the Ninth Circuit Court of Appeals, but that proposal is dead in the waters with Democrats taking a majority in the House of Representatives).
What the president doesn't seem to understand is that the judicial branch isn't meant to serve as a rubber stamp for executive branch. That's sad, to use one of his favorite adjectives. But it's also scary. (mm)