Roberts’ rebuke of Trump rings hollow, given justices’ conduct

Chief Justice John Roberts’ public rebuke of President Donald Trump caught many by surprise, not the least of which was Trump himself. In his signature style, Trump immediately fired back with a series of tweets rejecting Roberts’ claim that there are no “Obama judges or Trump judges, Bush judges or Clinton judges,” just federal judges trying “their level best to do equal right to those appearing before them.”  

Although I am highly sympathetic with the chief justice in responding to Trump, this is a case where Roberts would have been better to start with his own house in combating the politicalization of the courts. Moreover, despite accounts to the contrary, this is not the first time that Roberts has taken such a public position against a sitting president.

{mosads}First and foremost, Trump long has been out of line in his unrelenting attacks on judges and the courts, including his favorite foil, the U.S. Court of Appeals for the Ninth Circuit. He has a deeply troubling habit of attacking the motivations of judges who rule against him, including decisions such as the recent (and correct) ruling by District Court Judge Jon Tigar blocking his effort to unilaterally bar certain asylum claims in contradiction to federal law. He attacked one judge over his Mexican heritage, denounced another as a “so-called judge,” and treated any countervailing rulings as part of a campaign by “Obama judges.”

Roberts kept his silence for two years but reached a tipping point with Trump’s attacks on Judge Tigar. As the most senior figure in the judiciary, he understandably felt a need to speak on behalf of our federal judiciary.

Roberts’ public statement is rare, and there is a good reason for that. Justices need to speak through their opinions alone, not engage in public tit-for-tats with critics, in the interest of maintaining the integrity of their institution. Trump is not the first to attack the courts for perceived bias — or to pledge to change the courts through new nominees with more favorable views of the law. Yet, Trump is a politician, and Roberts is a jurist; a politician is valued by such public commentary, while a jurist is valued by its avoidance.

Ironically, Roberts played into Trump’s obvious strategy in creating the appearance of a fight between the courts and the president.

Given Trump’s irresponsible criticisms of individual judges, Roberts can be excused for taking this controversial step. However, his response would have had greater credibility if he showed the same principle in policing his own court. As I have repeatedly argued in columns, justices increasingly are making highly inappropriate, ideological statements in public without nary a growl from Roberts.

For example, in 2010, Justice Samuel Alito was shown at a State of the Union address, shaking his head and mouthing “Not true,” in response to President Barack Obama’s criticism of the Citizens United ruling on corporate campaign finance limits. Obama was out of line in his portrayal of the ruling — but he’s a politician. Some of us immediately denounced Alito’s conduct in breaking a longstanding tradition of justices remaining silent and neutral at such addresses. It was a serious violation of both protocol and principle. I wrote at the time that it was incumbent on Roberts, as head of the Supreme Court, to repudiate Alito’s conduct.

{mossecondads}Instead, Roberts gave a public speech with a not-so-veiled criticism of Obama allowing the address to “denigrate to a political pep rally.” It was an early example of how Roberts’ own version of the “Rules of Order” seem to excuse the conduct of his colleagues while excoriating the conduct of others.  

In reality, criticism of the judiciary by a politician — even a president — is far less harmful than political activities or commentary by members of the judiciary. Moreover, this is a problem not of the courts in general but of the Supreme Court. Lower court judges are closely monitored and disciplined for any violations of these rules dealing with political commentary or associations. However, the Supreme Court long has maintained that the rules of ethics do not apply to them and that they must be their own judges. The result is predictable and disheartening.

We have seen a rising number of these controversies over members of the court. While Roberts cannot remove or suspend a justice, he can use this position to reaffirm a bright-line rule of conduct — the same that applies to lower-court judges. Instead, his silence has reaffirmed a sense of utter impunity for members of the Supreme Court. Justice Alito has been criticized for attending political fundraisers, a red line that federal judges shouldn’t cross. Alito’s response to this objection on one occasion was, simply, “It’s not important.”

Roberts repeatedly has faced such questions over public commentary and has done nothing. For example, I was highly critical of the late Justice Antonin Scalia for his regular and inappropriate public speeches on contemporary issues as well as matters before the court. These speeches were often given to conservative groups.

Justice Ruth Bader Ginsburg has been criticized for her continued political comments in speeches to liberal and academic groups. Ginsburg is something of recidivist in abandoning the longstanding avoidance of political discussions in public — and liberals have lionized her for it, with the affectionate title of “The Notorious RBG.” Ginsburg has persisted, despite clear violations of judicial canons of ethics.

This year, she has continued unabated, seemingly unnoticed by Roberts. As in a 2017 speech, Ginsburg again held forth on the election and the unfair, sexist treatment of Hillary Clinton. She previously criticized Donald Trump and opposed his candidacy for the presidency; in addition to labeling him a “faker” and calling for him to turn over his tax returns, she criticized Republicans in Congress for impeding President Obama in his final year in office. She seemed to endorse the confirmation of Judge Merrick Garland for the high court.  

The response from Roberts? Utter silence.

Had Roberts shown vigilance in policing his own court, his criticism of President Trump would have had far greater ethical weight. Instead, while publicly criticizing both Obama and Trump for politicizing court decisions, Roberts looked the other way as his colleagues repeatedly ventured into political controversies.

As a result, Roberts’ otherwise principled objections to Trump’s remarks would seem to fulfill H.L. Mencken’s view that “a judge is a law student who grades his own papers.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.