President Donald Trump and Chief Justice John Roberts seem to be at peace - for now. Two days before Thanksgiving, the president attacked an “Obama judge” for ruling against him on immigration. Roberts fired back by issuing a statement to the effect that there are no “Obama judges or Trump judges, Bush judges or Clinton judges,” just independent ones. Trump elaborated with more accusations against liberal courts.
For the president, this was a rare kerfuffle in which many conceded that there was a certain brutal truth to what he said. Obviously, there is a predictable difference between judges appointed by Democratic and Republican presidents. Otherwise, lawyers would not file their cases in courts whose record shows that they’ll get a sympathetic hearing, as Trump has alleged. Brett Kavanaugh would have breezed to confirmation.
Partisan struggles over the federal courts have been going on since Marbury v. Madison, which originated in President John Adams’ attempt to fill judicial positions with his fellow Federalists in the last few days before President-elect Thomas Jefferson and the Democratic-Republicans took over in March 1801.
Roberts, a student of history with decades of experience as a lawyer and a judge before President George W. Bush elevated him to the Supreme Court 13 years ago, knows this better than most people, and certainly better than Trump.
What he surely also knows, however, is that the independence and impartiality of the federal courts is a matter of both reality and perception.
And there is more reality to it than Trump and his defenders admit, as demonstrated by many unanimous, but little-noted, rulings on an oft-divided Supreme Court, and by cases in which judges or justices voted “against” the parties of the presidents who appointed them.
One reason Trump dislikes Roberts so much is that he voted twice to uphold Obamacare, thwarting the top policy goal of the party to which he had been steadfastly loyal prior to becoming chief justice. Republican-appointed lower court judges have ruled against Trump in several cases as well.
What’s more, independence does not mean that judges must ignore wider political context, or sublimate totally their philosophical beliefs. Confronted, as they often are, with factual and legal ambiguities, judges may, and sometimes should, do what they think is required by the public interest, or by simple justice.
“Do what you think is right, and let the law catch up,” Justice Thurgood Marshall used to say.
Contrary to much partisan denunciation of judicial “activism,” this kind of judging can be perfectly consistent with judicial independence. The key, as Roberts implied when he spoke of “dedicated judges doing their level best to do equal right to those appearing before them,” is good faith, and intellectual transparency, not some platonic ideal of impartiality.
To adapt Roberts’ much-maligned assertion that judges should just call balls and strikes, every umpire in baseball has a slightly different strike zone, but that doesn’t make them all cheats.
To the extent that judicial independence is not reality but myth, it’s a useful one. Like other legitimating narratives - “Congress represents the people” - judicial independence is a “sacred principle” upon whose “regular public reaffirmation” political legitimacy depends, as Jason Willick noted in a 2016 American Interest article, “The Make-Believe Supreme Court and the Coming Constitutional Crisis.” As that title suggests, Willick was brutally candid, both about the role of myth in the Supreme Court’s legitimacy, and about the danger political polarization poses to the court.
Trump’s post-World War II predecessors in the White House tried to bolster the public’s sense that the courts act in good faith, even when they disagreed with them. These presidents adhered to unwritten rules such as the taboo against expressing anything stronger than “disappointment” with rulings that didn’t go their way.
At his 2010 State of the Union address, President Barack Obama famously, and inappropriately, chided the Supreme Court for its Citizens United ruling deregulating campaign finance, but even he did not accuse the justices of bad faith.
Presidents respected these norms not only because they thought it was right but also because it was in their interest. The favorable ruling of a neutral arbiter is worth much more than one from your own judicial poodle.
Trump seems not to care that his own words make it more likely his future victories at the Supreme Court will be regarded as the handiwork of “Trump justices.”
You almost want to tip your hat to Trump for finally putting the truth, as he sees it, ahead of self-interest.
Almost. Trump’s allegations of partisanship add nothing to public discussion of judicial independence, except a fresh justification for Democrats to treat the courts as their political plaything once they get back in power.
Roberts’ plea to respect the good faith of honest judges lacks populist drama. But it is what the country actually needs.
Charles Lane is a columnist with The Washington Post.