Among Conservatives, Some Measured Support for Chief Justice’s Rebuke of Trump
Posted November 23, 2018 4:01 p.m. EST
It is not like the chief justice of the nation’s highest court to rebuke a sitting president.
But it happened Wednesday, when Supreme Court Chief Justice John Roberts — a conservative not known for being publicly outspoken — pushed back on comments made by President Donald Trump.
Trump had called the 9th U.S. Court of Appeals “a disgrace” after a federal judge, Jon S. Tigar, ordered the administration to accept asylum claims from migrants no matter how they entered the United States. Trump called Tigar, who was appointed by President Barack Obama, “an Obama judge.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
The president has criticized judges and courts he disagreed with on many occasions, often in partisan terms that have rankled judges and legal scholars. But Trump’s own judicial nominations have been a boon to conservatives: So far, dozens of federal judges and two Supreme Court justices have taken their seats during his administration. That legacy could last for decades.
While some figures on the right objected to the statement from Roberts, the reaction from several prominent conservatives in the legal community has been more muted.
John G. Malcolm of the Heritage Foundation, a powerful conservative think tank, said he was “a bit surprised” the chief justice would issue a public response to the president but he did not object to the statement itself.
“I understand his desire to express the sentiment — one that I agree with — that judges owe fidelity to the Constitution and the law, and not to a political party or ideology,” said Malcolm, who is vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies.
The administration — and the office of the White House counsel, in particular — is overseeing a sweeping transformation of the judiciary. In addition to Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, Trump has appointed a historic number of conservative judges to the federal bench, including more than two dozen on the appellate courts.
“We’ve generally been very supportive of the president’s judicial picks,” said Jonathan H. Adler, a conservative law professor at Case Western Reserve University School of Law.
But he said he appreciated the statement from Roberts.
“There is a need for people to speak out in defense of the rule of law, in defense of American institutions, without regard for which side of the aisle the attacks come from,” he said.
Adler is a member of Checks and Balances, a group recently formed by George T. Conway III, a conservative lawyer who is a critic of Trump. Its members, more than a dozen prominent right-leaning lawyers, are urging their fellow conservatives to speak up about what they say are the Trump administration’s betrayals of bedrock legal norms.
John B. Bellinger III, a top State Department and White House lawyer under President George W. Bush who is also a member of the group, said the statement from the chief justice was unusual but appropriate.
“Chief Justice Roberts was expressing the same concerns about the president’s attacks on important American institutions that motivated us to form Checks and Balances,” he said.
In a tongue-in-cheek post on Twitter, the group said Wednesday that perhaps Roberts should join.
There is mounting evidence that some conservatives want to distance their judiciary achievements from Trump and his personal legacy, said Amanda Hollis-Brusky, a professor at Pomona College and the author of “Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution.”
“While the conservative legal community is very excited about the judges and justices Trump has appointed, I think the formation of this group, and Roberts speaking out, are a recognition that this doesn’t mean the judges and justices are beholden to this president,” she said.
In the aftermath of the highly politicized confirmation vote for Kavanaugh, which stirred up partisan rancor in the Senate and the public, the chief justice’s decision to stand up to Trump was helpful, said Ilya Somin, a law professor at George Mason University who is associated with the Federalist Society, an organization of conservatives and libertarians whose members have wielded tremendous influence over Trump’s judicial decisions.
“I have my disagreements with Roberts, but I do think he has a long-term view of what he thinks is necessary to maintain the Supreme Court, and the federal courts generally, as an institution,” Somin said.
A more pointed criticism of the chief justice’s statement came from Sen. Chuck Grassley, R-Iowa, who said in a tweet that he did not recall Roberts ever “attacking Obama” when that president rebuked the Supreme Court for its decision in Citizens United during a State of the Union address in 2010. (Malcolm of the Heritage Foundation also cited that as an inconsistency.)
Trump responded to the chief justice in a series of tweets that began Wednesday and spilled over into Thanksgiving.
“Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country,” he wrote Wednesday.
“Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster,” he added the next morning.
The chief justice did not respond.