Chief Justice Roberts’ rebuke of President Donald Trump over the latter’s suggestion that federal judges appointed by Democrats seem to sometimes be biased against his programs was somewhat selective.
The chief justice, for instance, said nothing when President Obama appeared to threaten the Supreme Court while it deliberated over the constitutionality of Obamacare. In light of the questions at the oral argument, many legal observers thought the court would invalidate the law. This prompted Obama to comment that he was “confident the Supreme Court would uphold the law.”
He said it would be “unprecedented” for the high court to rule the individual mandate unconstitutional and said the court should act with “judicial restraint” and not overturn “a duly constituted and passed law.”
Obama’s statement was ludicrous. The Supreme Court regularly overturns congressional enactments. More importantly, it negated the whole notion of the place of law in our society and represented an attempt to publicly pressure the court. And with Justice Roberts – to the surprise of almost everyone – President Obama may well have succeeded as Roberts cast the decisive vote in favor of Obamacare.
It is also noteworthy that the chief justice was silent in the face of unprecedented public criticisms of Mr. Trump during the 2016 campaign by Justice Ruth Bader Ginsburg. When asked in an interview about the possibility that Trump would become president, she said, “I don’t want to think of that possibility, but if it should be, then everything is up for grabs.”
On another occasion, she said, “I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as our president. For the country, it could be four years. For the court, it could be – I don’t even want to contemplate that.”
On still another occasion, she said, “He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego…. How has he gotten way with not turning over his tax returns? The press seems to be very gentle with him on that.”
Of course, she was not acting as a judge when she made those comments. But it is clear that, contrary to what most people have been led to believe, judges indeed have their own personal opinions on political issues much as the rest of us do. And that was what President Trump was basically alluding to although he went further when he opined that a particular judge had, in fact, acted according to his personal beliefs in his official capacity in a particular case – thus triggering his dispute with Chief Justice Roberts.
The president argued that because he invariably loses certain “policy” cases before Obama-appointed judges, personal biases, in fact, are evidently in play when contentious ideological issues are involved. Actually, with respect to his immigration policy, he can make a strong case considering that his major losses in the trial and appellate courts with respect to the travel ban case were reversed by the U.S. Supreme Court.
For President Trump, it is critical that Americans recognize that court decisions are not arrived at in computer-like fashion. It is only in this way that Americans can appreciate the role liberal-oriented judges have played in shaping American domestic policy. And it is only then that he can succeed in his calls for a more honest and dispassionate judicial branch.
