In an exceedingly rare personal rebuke of a president by the Supreme Court, Chief Justice John G. Roberts Jr. on Wednesday denounced President Trump’s attack denigrating as a partisan “Obama judge” the California federal jurist who'd recently ruled against his asylum policy.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a surprise statement, a day after Trump had assailed Judge Jon S. Tigar of the U.S. District Court in San Francisco and called the San Francisco-based 9th Circuit Court of Appeals “a disgrace.”
“What we have,” Roberts continued, “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.”
Though Roberts did not name the president in his statement, which was given to the Associated Press after it sought a reaction to Trump’s comments, his pointed response was an unprecedented act for a chief justice who has headed the third branch of government alongside three presidents — Republican George W. Bush, who named him in 2005, Democrat Barack Obama and now Trump. Roberts has remained mostly mute as Trump repeatedly has attacked courts and judges, and Roberts personally, since before Trump became a candidate for president.
While Roberts and past chief justices have often spoken to the judiciary’s independence — including at times when they believe that independence is under attack — legal experts were hard-pressed to think of another occasion when a chief justice had volunteered comments so directly critical of a president.
“What makes them unusual is they are so clearly in response to something the president said,” said professor Carolyn Shapiro, co-director of Chicago-Kent College of Law's Institute on the Supreme Court of the United States.
“It’s such a break with precedent that it’s almost like a warning shot,” she added.
Shapiro suggested that Roberts was not only responding to Trump, but also trying to preempt further criticism that court rulings reflect judges’ political whims or those of the president who appointed them.
Roberts’ statement comes at a particularly fraught moment for the nation’s highest court, after the Republican-controlled Senate’s narrow confirmation last month of Brett M. Kavanaugh. The vote followed a bitter, partisan fight entailing allegations of past sexual assault and Kavanaugh’s widely criticized attack against Democratic senators. It became a divisive issue in the midterm election, provoking debate over the court’s political leanings to an extent not seen since its 5-4 ruling that decided the 2000 presidential election for Bush.
The president’s remarks that spurred Roberts to speak out came Tuesday, when Trump, talking to White House reporters, responded to a question about Tigar’s ruling against the president’s plan to quit accepting asylum claims of migrants at the southern border.
He replied by repeatedly attacking the 9th Circuit as a disgrace, though it wasn’t involved in the ruling, and suggesting retribution of some sort. “It’s a disgrace, and I’m going to put in a major complaint because you cannot win — if you’re us — a case in the 9th Circuit,” Trump said.
As for Tigar, he said, “This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore.”
The White House had no immediate response to Roberts’ statement, but Trump did, predictably on Twitter.
“Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’” he wrote from his Mar-a-Lago resort in Florida, after playing golf with golf legend Jack Nicklaus.
As for the 9th Circuit, which has jurisdiction for appeals in California and eight other Western states, Trump said its rulings “are making our country unsafe!” He admonished Roberts to “study the numbers” of how often its rulings are overturned by the Supreme Court that Roberts has headed for 13 years. “They are shocking,” Trump added.
While the 9th Circuit has a higher-than-average rate of reversals, some others of the nation’s 13 appellate courts see their decisions overturned more often by the Supreme Court.
Trump has tweeted disdainfully about Roberts since 2012, when the chief justice wrote the opinion upholding the constitutionality of the Affordable Care Act, Obama’s signature domestic program.
“Congratulations to John Roberts for making Americans hate the Supreme Court because of his BS," Trump wrote in one tweet. In another he wrote, "John Roberts arrived in Malta yesterday. Maybe we will get lucky and he will stay there."
Trump occasionally leveled similar jibes at Roberts in subsequent years and stepped up the attacks in 2015, when he became a presidential candidate. He suggested that Roberts wasn’t sufficiently conservative, as a way to win over the Republican Party’s court-conscious conservative voters.
In a tweet just days after he declared his candidacy in June 2015, Trump wrote, “If I win the presidency, my judicial appointments will do the right thing unlike Bush's appointee John Roberts on ObamaCare." A number of similar broadsides followed through the 2016 election.
As president, Trump stopped the jabs at Roberts but continued to hit other judges and courts generally, especially the liberal-leaning 9th Circuit.
Last year, he denigrated a “so-called judge” for ruling against his travel ban against refugees and and others traveling from certain countries, and complained that “a Mexican” presiding over the fraud trial against Trump University wouldn’t be fair. The judge was a American born in Indiana to U.S. citizens who’d migrated from Mexico.