What Chief Justice 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. The independent judiciary is something we should all be thankful for.”
What prompted his comment: After federal judge Jon Tigar of the U.S. District Court for the Northern District of California temporarily blocked the Trump administration from denying asylum to migrants who enter the U.S. illegally, the President said that the decision was a “disgrace,” adding,
“Because every case, no matter where it is, they file it — practically, I mean practically — for all intents and purposes — they file it in what’s called the 9th Circuit. This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore. Everybody that wants to sue the United States, they file their case in — almost — they file their case in the 9th Circuit. And it means an automatic loss no matter what you do, no matter how good your case is. And the 9th Circuit is really something we have to take a look at because it’s — because it’s not fair. People should not be allowed to immediately run to this very friendly circuit and file their case. And you people know better than anybody what’s happening. It’s a disgrace. In my opinion, it’s a disgrace what happens with the 9th Circuit. We will win that case in the Supreme Court of the United States.”
This was—I don’t think it’s unfair to characterize it as “gleefully”—gleefully reported as a rare rebuke of the President by a Chief Justice.
Notes:
- What Roberts said is obviously the official position of the head of the federal courts system and the top judge in the United States. There is nothing remarkable about the statement at all, except when he chose to say it. True or not, accurate or not, this has to be the Chief Justice’s position, and he has to be an advocate for that position.
- I generally agree with his position and statement. It certainly is the ideal. That does not mean that there is no difference in the judicial philosophies of Obama judges and Trump judges, or that whether a judge was a Republican appointee or a Democratic appointee has no predictive value on how such judges will tilt on certain issues. That does not mean that certain judges on the federal bench are not blatantly partisan. Or idiots.
- The news media and any Democrats chortling at Roberts statement really have astounding gall. Every report on a court case on a politically sensitive matter notes whether the judge was an Obama appointee or was put on the bench by a GOP President. Why do they do that, if they think it is irrelevant? Why did Democrats stoop to the tactics they did to try to destroy Brett Kavanaugh if federal judges’ political leanings were irrelevant.
- I would have liked to have seen Roberts’ predecessor, Chief Justice Rehnquist, make a similar statement when the Bush v. Gore decision was being attacked by Democrats—and the news media, of course— as partisan payback with Justice Scalia rewarding the party that appointed him to the Court.
- Roberts also could have made the same comment when President Obama was shamelessly impugning the integrity of the Supreme court by veiled and not-so-veiled suggestions that its decision on the constitutionality of the Affordable Care Act would be guided by party preference rather than the law. Instead, he became the surprise vote to save Obamacare. Hmmm. Perhaps Roberts was speaking of his own independence. Is there any doubt that if Roberts had voted with Scalia, Thomas, Alito and Kennedy to overturn the law, Obama and Democrats would have been making Trump-like comments about conservative judges?
- I fear that Roberts was virtue-signaling, making a necessary statement of support in a context where he will be seen as a critic of the President. I hope that wasn’t his motive., but it feels like a chap shot to me.
- Overall, I am glad Roberts said what he said. It was no more a rebuke of the President, however, than it was of every Democrat who has assailed Trump’s appointees, the former President, Hillary Clinton, Bernie Sanders and every other critic of Citizens United or Heller, and every pundit who savaged Brett Kavanaugh.
Ethics Alarms 
I think you have accurately encapsulated all the relevant issues. However, Roberts needed to make that statement at a time when no one is making accusations. Making the statement now creates an appearance of personal animus to the president.
Trump should have bided his time before making his remarks: He now has the option to shift the balance in the night circuit court of appeals by appointing new judges. Roberts probably should have kept his mouth shut as it does appear that he is virtue signaling and playing into the hands of the left. Best to lose a battle, but win the war.
I don’t see how it matters. While the Democrats took the house, they lost ground in the Senate. Furthermore, the makeup of the Republicans shifted further rightward.
Under the Reid rules, Democrats have zero ability to block any judicial appointments. I suspect McConnell is now going to ran them through and finish 2020 with zero openings. It’s an issue that makes even the never Trump folks begrudgingly accept as a Trumo accomplishment as the entire right side of the aisle is fed up with judicial activism.
*ram
“…the entire right side of the aisle is fed up with judicial activism.”
Boy, you got that right.
However, I foresee a time when judicial activism will be accepted by the Right, as they follow their unethical brethren the Democrats down the tit-for-tat alley we seem to be locked in to.
It has been said that the SCOTUS has had a principle role in the transformation of culture through its so-called *activism*. If this is so it points in the direction of directed and conscious efforts to progressivize culture which has also been said to be naturally conservative. Or, to put it another way ‘non-progressive’. (I accept that the same could operate in the reverse direction but that, if my understanding is correct, this has not been the overall direction of the Court’s decisions in the Postwar, to say the least.)
This statement …
… reminds me of a whole *type* of statement that is made today insofar as it is true on one hand but incomplete. It is not a lie of course, but it is not the whole truth. Therefor it does not *enlighten* and clarify, but obscures and confuses. It is rhetorically questionable therefor.
In fact there are people, and judges, with specific ideas about *things* and who are activist for their ‘cherished values’, and they do to all appearances militate for these values in their jurisprudential decisions. Fact.
I would like to understand better — if indeed it is true — the degree to which the Court is not independent. While I understand that ‘independent’ means that it does not have another branch within government subverting it or directing it, I do not think it correct to say that it is *completely independent*. It is part of a System and the parts connect, one to another. And since it is true as rain that the American government, over time and through different means, has become corrupt (what does ‘swamp’ mean if not corruption?), and if the System is unduly influenced, if not controlled substantially, by extra-governmental business interests, it stands to reason that the Court has also been affected. How could it be otherwise?
I have read articles and heard people talk who indicate — paranoiacally? — that there are ways and means by which this Court is influenced. And the speak of powerful sectors which have and do succeed in influencing it. Thus the notion of complete independence is suspect. But who will talk about that? Who can?
Certainly not this Judge . . .
True, this quote is of a far *larger* sort in what it refers to, but yet it is applicable to the division between the Weltanschauung between so-called Liberal and so-called Conservative. And that is just a starting point . . .
I have no issue whatsoever of being called anti-progressive.
I prefer to be called an advocate of liberty, freedom and individuality. I’m staunchly a federalist. Progressives are opposed to all of those.
That’s interesting, as I would have thought that Progressives would not advocate for anti-federalism and would tend to be federalists.
In regard to ‘liberty, freedom and individuality’, I think I would have to say that those require a certain sort of person as an a priori. I would admit that such a person did exist when the classic Liberalism was thought out and defined (or more of them perhaps). And for that sort of individual ‘liberty, freedom and individuality’ would have meant responsibility, proper use of the self in the world, and self-actuation.
And now?
I would imagine that 90% of people asked today to define what ‘liberty, freedom and individuality’ are and mean would stumble over a definition!
Additionally, it seems likely (I am in a cynical phase!) that they would not be ‘the sort of person’ who could appropriately handle ‘liberty, freedom and individuality’.
If this is so, then ‘liberty, freedom and individuality’ can realistically only be given to such persons who have been prepared for it. And that implies a whole previous project: education, restraint, structured values, etc.
Such that today ‘liberty, freedom and individuality’ cannot, in fact, simply be given. Or, if it is given to those who are not properly trained they will use it for non-proper purposes.
What do you think?
On the federalist angle, progressives are very anti-federalist. Federalists are for a limited federal government that is externally focused. Progressives are all about an expansive federal government with tentacles extending into ever facit of daily life.
I would agree that many today don’t understand freedom and liberty. A classical like liberal believes in freedom of speech to mean you can say anything and the way to counter hate speech is to respect their right to speak while refuting what they say. A progressive thinks freedom is punching someone in the mouth so you can be free from ideas you don’t like.
Interesting angle on federalism. I’ll look into it more.
Could an anti-federalist also define a position of not desiring an ‘expansive federal government with tentacles extending into every facet of daily life’?
Or, in your view, would anti-federalism lead to just as many interpretations of the Constitution by each state and thus become problematic?
The rules for how far states can go have been established, and are being established every day. Limited government is a conservative stance, and one not shared by the GOP Establishment Elite. Conservatives would not take this as license to reinterpret the Constitution on a state by state basis.
(The Alt Right, on the other hand, is disposed to do whatever the Democrats have done, so all bets are off as to how they react once in power.)
Chief Justice Roberts should just remain silent. His unintelligible opinion regarding Obamacare has convinced me any of us could sit in his place and virtue signal and opine to our heart’s content regardless of the Constitution and be every bit as right or wrong as he has been. Every summer weekend I drive past his old prep school and mock it for having such pride in graduating him.
To be clear, Trump should keep his yap shut as well.
Both parties quietly going about their duties without comment would be a more pleasant circumstance.
I’m going to assume best intent. It is important for somebody out there, especially somebody on the Supreme Court, to remind Americans what the Supreme Court is and what it’s for.
Happy Thanksgiving!
“That does not mean that certain judges on the federal bench are blatantly partisan.”
Should there have been a “not” in there before ‘blatantly’?
Why YES, it does!
To you and all of the denizens of Ethics Alarms, Happy Thanksgiving!!
Thanks d_d. Same to you. And likewise.
PS: I thought of this place when reading a mass email from my local Banner Health doctor’s office about how to avoid having a crummy Thanksgiving: They urged patients to “Agree to disagree.” Hah. One of you-know-who’s least favorite strategies. My preferred strategy: Do NOT engage. “Pass the gravy” is always pretty safe. Maybe gutless, but we can’t have all combat all the time.
We either have activist judges or we have originalist judges and it’s crap that we have activist judges and a dangerous sign for the Republic.