Did the Chief Justice Just Send a Message to the President?

Much as Trump has attacked various governmental institutions over the years, he has lobbed insults against the judicial branch whenever they disagree with him. You might recall the time he suggested that a federal judge couldn’t be fair because of his Mexican heritage, or the time he referred to “so-called judges” who ruled against his Muslim travel ban.

After District Court Judge Jon Tigar’s Monday night decision to temporarily block an executive order that would have scaled back US asylum policy, Trump referred to him as an “Obama judge.” Perhaps it was the straw that broke the camel’s back, because Chief Justice John Roberts made the unprecedented move of pushing back on that one.

In a statement on Wednesday, made public because of a query from The Associated Press, Roberts said, “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.”

As Kate Riga documented, that statement clearly got in Trump’s head as he spent the next couple of days tweeting responses to Chief Justice Roberts. I suspect that is because the president has always assumed that he could ultimately count on the Supreme Court to back him, thanks to an assist by Mitch McConnell in helping him pack the court with extremist conservatives. If Trump loses Roberts—the closest thing we have on the Supreme Court to a swing vote—that assumption could be in doubt.

The president is simply doing his usual routine with Tigar’s recently ruling, in which anyone who crosses him gets blasted. In his mind, the world can be divided into two groups: those who are loyal to him and those who are his enemies, i.e., “Obama judges.” But when it comes to the judicial branch of the government, that strikes right at one of John Roberts’ most foundational beliefs, which is about the importance of an independent judiciary. That was at the heart of his remarks comparing judges to umpires during his confirmation hearings back in 2005.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench…

It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless…

Mr. Chairman, I come before the committee with no agenda.

I have no platform.

Judges are not politicians who can promise to do certain things in exchange for votes.

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

A lot of ink has been spent pointing out how Roberts was wrong in that comparison. Elena Kagan addressed both the analogy’s strengths and weaknesses during her confirmation hearings.

As Ari Berman has documented, Roberts actually did enter the Supreme Court with an agenda: a decades-long battle against voting rights. There are probably other conservative causes that filter through his positions on issues that come before the Supreme Court as well. But regardless of its merits, Roberts’ umpire analogy represents what he believes about the role of the judiciary as a non-partisan entity whose primary role is to ensure that we have a government of laws, not men.

It is very possible that in the coming months, questions about whether or not Donald Trump is above the law will come before the Supreme Court. That is precisely why Brett Kavanaugh’s nomination and confirmation were so important to the president. His partisanship (and extremist views on executive privilege) was on full display for everyone to see.

But it will be interesting to watch how the Chief Justice responds to those claims when/if they reach the Supreme Court. Will Roberts call the balls and strikes based on the idea that not even the president is above the law? Will he insist that we have a government of laws and not Trump? Did the Chief Justice just give the president a reason to worry that he might not simply get a pass from the Roberts Court?

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60 .