Roberts’ Rebuke of Trump Rings Hollow, Given Justices’ Conduct

Below is my column in the Hill newspaper on the recent public statement issued by Chief Justice John Roberts.  While I am entirely sympathetic with the statement (which is also true) about the unfairness in referring to “Obama judges” ruling against the Trump Administration, the public rebuke only highlighted the glaring disconnect in Roberts’ defense of apolitical courts and his deafening silence over the conduct on his own Court.

Here is the column:

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.

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.

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.

140 thoughts on “Roberts’ Rebuke of Trump Rings Hollow, Given Justices’ Conduct”

    i am a little late with the news sorry. its 2 years old. lol
    i just say this cuz i was wondering…. being part of the Russian troll army don’t pay so well….
    maybe Natasha or Peter or Benson or Mark knows….. how much do they pay?

    I can whore myself out a little if the price is right! ; – )
    I am a lawyer after all.
    PS do they issue 1099s? hope not LOL

    1. Mr Kurtz – the protestors at the Kavanaugh hearing were paid in cash. Cash works. 😉

  2. given all the recent calls for the government to investigate, harass, hound etc american white extremists etc, i thought i would pull this out of the memory hole about the last big failed witch hunt that was a long multiyear disaster culminating in the disastrous ruby ridge and waco and the loss of many innocent lives…. and yet failed to bag timothy macveigh before he did his dirty deeds

    that’s just scratching the surface

  3. For several years the 4 liberal justices often handed down decisions that coincided with their liberal progressive mindset. While I don’t agree with them, they certainly have a right to their own beliefs.

  4. I am confident that Chief Justice John Roberts is capable of reading, with full comprehension, the words of the English language written by the Founders in the U.S.Constitution. I am confident that Chief Justice Roberts knows fully that Congress cannot tax for individual welfare and that Obamacare is unconstitutional. Chief Justice Roberts, for political purposes, corruptly and fraudulently commingled the definitions of the words “state” and “federal” to support the unconstitutional Obamacare “exchanges.”

    Congress has NO authority to tax for individual welfare or redistribution of wealth. Obamacare is redistribution of wealth, a primary principle of the Communist Manifesto, which is deliberately omitted and, thereby, deliberately excluded by the Constitution. Obamacare is welfare for individuals and not general welfare or for the welfare of all. Obamacare is, by design, intended for assistance to individuals.

    “…general Welfare…,” deliberately omitting and, thereby, excluding individual welfare, is what the Constitution provides for.

    Article 1, Section 8

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

  5. As I have repeatedly argued in columns, justices increasingly are making highly inappropriate, ideological statements in public without nary a growl from Roberts.

    Isn’t that special; criticism of our judiciary is the purview of legal scholars and not politicians. Really? The President cannot say that a judge is an Obama judge, or Bush judge or Clinton judge; yet how many times has Turley made the point in some article that a judge in a particular case was a Bush, or Reagan or Obama, etc. appointee? If judges don’t function with a political bias, then why is it of any importance to identify the politician that appointed them?

    Once again President Trump is terrorizing the establishment by saying out loud what is already common knowledge. Oh no, Presidents speaking about the courts are an attack on that honorable institution. Bullsh!t. Take a read through the Federalist Papers and you’ll find one theme and that is every individual that we entrust to honor their oath to our constitution has the same fallible human nature. It is right to point out where they have failed and are failing. If the 3 branches are supposed to be checks on each other, then why shouldn’t the leaders of the each branch speak out in their criticism of the other branches? Because it undermines the people’s confidence in our institutions of government? Again, bullsh!t. The political class wants to undermine our confidence, in the other party. And it works.

  6. Roberts knows perfectly well his statement is nonsense. He should not engage in such displays of artifice and say as little as possible when the subject is raised.

    The problem is in the judiciary (especially the appellate judiciary) and the law faculties. The jurisprudence they adhere to is derivative of political and social theory that they do not acknowledge but which is rampant among faculties and other professional people. The view is this: when elected officials make discretionary decisions which contradict the preferences of People Like Us, such decisions must be annulled by court decree. They fancy they’re the school administration and ordinary Americans (including the President of the United States) are juveniles.

    This problem was identified by Robert Bork a generation ago. Academe, and, increasingly, the rest of the professional-managerial class, is loyal to their own kind, not to the rest of us who are just pairs of hands. Prof. Turley does not wish to acknowledge this social reality, or the implications of it.

    It’s time to go Kennesaw Mountain Landis on these people, BAMN.

    1. Here is something folks don’t understand since they’re not lawyers. Nor many lawyers even. But it’s important….

      They criticize judges only in fear of their livelihood!

      8.2 rules of professional conduct– similar rule regulating lawyers in every state… here is a professor on subject

      “Lawyers, it seems, don’t want to address the topic for fear of being perceived as speaking critically of the judiciary, while judges seemingly don’t want to discuss situations where they feel they have been unfairly criticized.

      The situation isn’t surprising. Legal professionals work within the Rules of Professional Conduct, so they don’t want to make any comments that might be perceived as unduly critical of others in the profession — a profession built largely on respect and civility. But according to an Indiana University Robert H. McKinney School of Law professor, the unease surrounding Rule 8.2(a) is not a matter of respect, but rather a matter of lawyer fear.

      In her new book, “Voice of Justice: Reclaiming the First Amendment Rights of Lawyers,” Professor Margaret Tarkington takes a deep dive into caselaw surrounding lawyer speech and related discipline and concludes that rules similar to 8.2(a) can cause attorneys to stay tight-lipped even in the face of judicial misconduct. That effect, Tarkington said, can often do more harm than good — that is, instead of building respect for the judicial branch, it can allow judicial misconduct to continue.”

Comments are closed.