Tension between the president and members of the Supreme Court has been fairly common over the last 200-plus years. In the 19th century, President Andrew Jackson made his contempt for Chief Justice John Marshall clear. In the 20th century, President Franklin D. Roosevelt considered trying to increase the members of the court from nine to 15 to ensure he’d get more favorable rulings. In 2010, President Barack Obama used his nationally televised State of the Union address — with most of the justices watching in person in the House chambers — to rebuke the high court for its decision in the Citizens United campaign fundraising case.
Yet there is simply no precedent for the intermittent war of words between President Donald Trump and Chief Justice John Roberts. Trump’s habit of reacting angrily to federal judges’ ruling against his administration and blaming them on partisan personal motives — and his suggestion that judges he appoints should always side with him — is such a corrosive characterization of the judiciary branch that in 2018, Roberts issued a pointed statement disagreeing with the president.
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“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts wrote. “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.” This led Trump to mock Roberts as naive on Twitter and to once again blast “Obama judges.”
Now Roberts has returned to this theme again, albeit more obliquely. In his recent annual report on the state of the federal judiciary, he wrote that to maintain the public’s trust, “We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity and dispatch.” With several major court rulings involving Trump’s policies and his personal finances to be decided by the Supreme Court over the next six months, Roberts’ comments about the importance of judicial independence could be interpreted as foreshadowing that the court’s conservative majority won’t be the rubber stamp that the president wants.
But another theory makes just as much sense: The chief justice is making clear he’ll resist attempts to turn the Senate’s pending impeachment trial of Trump into a partisan circus — and that in overseeing the trial, he will “call balls and strikes,” as Roberts famously said of how he sees a justice’s role in 2005. Americans should hope this happens.
In 1999, then-Chief Justice William Rehnquist took a low-key role in the Senate trial of President Bill Clinton, and there’s an assumption that the Trump trial will use the same rules. Yet given that those rules say the chief justice “may rule on all questions of evidence,” it will be hard for Roberts to duck the spotlight. What will he do when Democrats argue that Senate Republican Leader Mitch McConnell’s plan to block testimony from witnesses such as White House chief of staff Mick Mulvaney and former national security adviser John Bolton subverts democracy? Or if McConnell calls for acquittal before evidence is even presented?
How the chief justice handles such challenges is profoundly important. If Roberts wants to demonstrate how crucial an independent judiciary is to American democracy, he’ll soon get his chance.
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