Chief Justice John Roberts is a much smarter politician than Donald Trump.
Because he has a lifetime appointment, and a consistent conservative ideology, Roberts understands that his job can help reverse the gains of the consumer, feminist, civil rights, gay rights, environmental, and labor movements through a series of incremental court rulings. But to carry out his reactionary agenda, he knows it helps if Americans view the Supreme Court as a neutral arbiter of the law rather than a partisan body, much less a tool of the current occupant of the White House. That is why he issued a statement last week rebuking Trump for attacking a federal judge who ruled against his administration’s asylum policy as “an Obama judge.”
That was Trump’s characterization of Judge Jon Tigar of the U.S. District Court in San Francisco, who ordered the administration to resume accepting asylum claims from migrants.
Robert’s response was cool and temperate. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he wrote in a statement the next day. “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.”
But Trump wouldn’t leave the skirmish alone, firing back on Twitter: “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.”
Roberts certainly knows that his own statement is a lie and that Trump is correct, but Roberts is smart enough not to publicly acknowledge that the Supreme Court is a political body. With some exceptions, justices generally vote as one would expect, given who appointed them—most especially in a time of great partisan polarization.
The positive publicity that Roberts received for his reprimand of Trump likely met his hopes and expectations. The New York Times, for example, played right into Roberts’s hands with its headline: “Chief Justice Defends Judicial Independence After Trump Attacks ‘Obama Judge.’’’
Unlike Roberts, Trump has no overriding ideology other than his gut-level racism, sexism, and xenophobia. He did not seek the presidency to promote a set of values, but to satisfy his lust for power, assuage his emotional insecurities, get revenge against Obama for belittling him at the 2011 White House Correspondents dinner, and use the White House to enrich himself and his family. For Trump, everything is personal. He acts almost entirely on instinct. He is unable to calculate his moves toward some long-term goal.
Since graduating from Harvard Law School, by contrast, Roberts has been a loyal soldier in the Republican army. He served as a clerk to Associate Justice William Rehnquist on the Supreme Court, an aide to Reagan’s attorney general, William French Smith, an assistant to Reagan’s chief counsel, Fred Fielding, and deputy solicitor general in the George H.W. Bush administration.
In November 2000, as a partner in a corporate law firm, he paid his own way to Florida to advise then-Governor Jeb Bush on the recount of ballots during the presidential contest between Al Gore and Bush’s brother, George W. Bush, which culminated with the Republican justices on the Supreme Court handing the White House to W.
Bush repaid the favor in 2003 by nominating Roberts for a position on the U.S. Court of Appeals and, two years later, by nominating him as Chief Justice of the U.S. Supreme Court to replace Roberts’ mentor, Rehnquist. After Bush announced his nomination, Roberts repeatedly claimed that he hadn’t belonged to the right-wing Federalist Society, though his name appeared in its 1997-1998 leadership directory. During his Senate nomination hearing, he said that Roe v Wade was “settled as a precedent of the court,” though he’d written a memo as Deputy Solicitor General recommending that it be overturned.
At age 50, Roberts became the youngest person confirmed as chief justice since John Marshall in 1801. Roberts knew that he had at least 25 years, perhaps more, to use the Supreme Court to advance his right-wing views and reshape the country.
During his 13 years as Chief Justice, the Roberts court has achieved from the bench what Republicans could not accomplish through the give-and-take of elections and legislation. Under Roberts, the court weakened the Voting Rights Act of 1965, because, Roberts wrote, “our country has changed.” The court opposed the use of race as a standard for adopting desegregation policies; made it easier for corporations to pollute the environment; overturned Washington, D.C.’s handgun ban (a precedent the NRA has used to further its gun rights’ agenda);unleashed (through Citizens United) a flood of corporate money into America’s election campaigns; and (in Husted, Ohio Secretary of State v. A. Philip Randolph Institute) sanctioned voter suppression. In June, Roberts (and the other four Justices appointed by Republicans) sided with corporate America’s assault on unions by reversing a 1977 ruling that permitted states to require non-union members to pay fees to cover the costs of collective bargaining on their behalf. Roberts also voted against the Court’s ruling legalizing same-sex marriage.
In 2012, Roberts triggered outrage among conservatives by voting to uphold a mandate requiring citizens to purchase health insurance or pay a tax under the Affordable Care Act. Citizen Trump joined in the conservative chorus, tweeting at the time: “Congratulations to John Roberts for making Americans hate the Supreme Court because of his BS.” But Roberts gave himself some wiggle room by stating that while the mandate was unconstitutional, it fell within Congress’ constitutional authority to tax.
That decision was a rare exception. Legal scholars have found that Roberts has been one of most reliable conservatives in recent Supreme Court history, particularly when his vote was the necessary fifth vote to uphold a conservative ruling.
Like many Republicans in Congress, Roberts no doubt privately finds the president’s impulsive tirades disconcerting and embarrassing. Until last week, though, Roberts had avoided any public confrontations with Trump. He didn’t respond when, during the presidential campaign in 2016, Trump said that Roberts has “turned out to be a nightmare for conservatives” for failing to vote to overturn Obamacare. Roberts remained silent when Trump attacked Federal judge Gonzalo Curiel, saying that the Indiana-born judge who was overseeing the lawsuit against Trump University could not be impartial because he was a “Mexican.” Last year, Roberts said nothing after Trump described Judge James Robard of the Federal District Court in Seattle as “so-called judge,” in the wake of his ruling against Trump’s travel ban. In June, writing the majority opinion in a five-to-four decision sustaining Trump’s executive orderrestricting travel from predominantly Muslim countries, Roberts refused to condemn Trump’s call for a “Muslim ban.”
The 63-year-old Roberts broke his silence last week, but not as an impulsive counter-attack or out of personal pique. For Roberts, Trump’s rants are attacks on the legitimacy of the federal judiciary itself. Roberts is playing the long game. Now that he has a solid five-to-four conservative majority to work with, and particularly in the wake of Brett Kavanaugh’s entirely partisan confirmation, he doesn’t want to sully the public’s view of the court, or to view him as a judicial lackey for Republicans, much less for the president. That could undermine his agenda for next decade or two.
Last month, speaking at forum at the University of Minnesota, Roberts took pains to insist that the Supreme Court was independent from partisan politics.
“We do not sit on opposite sides of an aisle,” Roberts said. “We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation. And I want to assure all of you that we will continue to do that to the best of our abilities whether times are calm or contentious.”
Roberts’ allegiance is to conservative values and interest groups, not to Donald Trump. Except for the travel ban, no major cases emerging from Trump’s actions have yet reached the Roberts Court. Given his past rulings, one would expect Roberts to be almost totally aligned with Trump’s policy agenda, but that doesn’t mean he’ll do Trump’s bidding if and when it comes to protecting the president from subpoenas or other threats to his presidency.
What’s at stake is bigger than Trump. It is Roberts’ agenda to reverse the nation’s progress on equal rights, civil justice and environmental protection.
In the clash between the jurist and the president, Roberts is the tortoise—slow-and-steady, methodical, not flashy, but resolute. Trump is the hare—so arrogant that he takes a nap midway through the race, allowing the tortoise to beat him.
Roberts has absorbed the lesson. The barely-literate Trump obviously never read Aesop’s most famous fable. One of his children should do him a favor and read it to him at bedtime, if they can pull him away from his Twitter account.