The president, as usual, was ignorant and inaccurate and probably a willful liar in several ways in his attacks on Chief Justice John Roberts yesterday and today. But it’s up to John Roberts to prove the president wrong. Many of us have already bought into (for good reasons or bad or some mixture) the essence of the president’s attack on the legitimacy of the American judiciary. Roberts’ job, as Chief Justice of the United States (not only of the Supreme Court) is in large part to preserve, protect, and defend the impartiality of American judges and courts and the perception of that impartiality. That’s why Roberts claimed, in response to a query from the AP, that there are “no Obama judges or Trump judges, or Bush judges or Clinton judges.” Public approval of the Supreme Court has held up better than the favorability ratings of Congress, but it’s shaky, Trump knows it, and he is trying to delegitimize the federal courts as much as he can before he and his family and his business interests are put through the legal wringer, as seems very likely in the near future.
Trump claimed today that he is demanding adherence to the “Constitution as written.” If he took the trouble to study just the Emoluments Clause, he might realize that if he is actually held to the standards of the words of the Constitution then he is the one in for “bedlam” and “chaos.” Even so, the burden in this dispute is probably heavier on Chief Justice Roberts. He has the opportunity, as the likely new swing justice, to uphold the principle of doing “equal right,” as he put it, to everyone who comes before the Supreme Court. Roberts has been eager to dismantle campaign finance laws and gun regulations and the Voting Rights Act, all of which amounted to radically reactionary judicial activism in my judgment. He has also rescued the Affordable Care Act twice (while adding the poison pill re Medicaid expansion, to be sure), thereby arousing hot anger from the right. How will he steer the high court through the rest of the treacherous shoals of the Trump presidency? He is a very sharp fellow, he can plan several steps ahead, and he’s put the president and the country on notice that he does not believe Trump is “telling it like it is” when the president trash talks federal judges. But Trump’s most loyal followers are not inclined to pay much attention or give much credence to Roberts. Neither are progressives–nor likewise many of the moderate Republicans who just voted for Democratic candidates a couple of weeks ago. Roberts has a real task on his hands.
While many–some years about half–of Supreme Court decisions are decided either unanimously or nearly so, Justice Roberts as well as all other federal judges have a challenge in front of them: how to deal firmly, fairly, and consistently with a president who is not likely to go down politely or quietly, not going to stop exploiting the Department of Justice for personal vendettas, and worst of all, is apparently figuring out new ways to do wrong (nightmare scenario: Trump with a learning curve!). Adult supervision from the House of Representatives (in particular the Oversight, Intelligence, and Judiciary Committees, not to forget Ways and Means if it obtains the president’s tax returns) is on the near horizon, and I don’t see how the president and the administration avoid getting burned by it. Mueller and Whitaker and Rosenstein are, as of today, major wild cards. And it is not necessarily a sign of presidential strength when you feel you need to attack the guy who could preside over your trial in the Senate. All that said, the ways things could get more troubling and messy are multitudinous, aren’t they? I hope Roberts and the Court are ready for whatever’s coming, since they are very likely to have to act as the umpires quite soon.