Friday, November 23, 2018

John Roberts Fires A Shot Across Trump's Bow


John Roberts has had enough of Donald Trump's endless assault on the judiciary. The Chief Justice got his dander up after Trump went after the 9th Circuit for issuing a temporary restraining order blocking the Administration from denying migrants the opportunity to seek asylum. Trump called the decision "a disgrace," and referred to the judge who issued the ruling "an Obama judge."

And that prompted this response from Roberts:
"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."
Let's put aside for the moment that the judiciary, particularly the Supreme Court, has been political with respect to some of its decisions over the last couple of decades. Bush v. Gore and Citizens United are two of the most egregious examples of right-leaning activist decisions that have marred the Court.

The message that Roberts is sending has little to do with ideology or politics. In short Roberts is issuing a warning to Trump that there could be consequences for him if he doesn't lay off the judiciary. Now don't get me wrong: I'm not suggesting that Roberts is going to start bunking with Ruth Bader Ginsburg and Elena Kagan. He was, after all, appointed by George W. Bush and he is clearly a conservative justice.

But Roberts is also the Chief Justice of the Supreme Court and, as such, he has a responsibility to ensure that the reputation of this co-equal branch of government is not besmirched by Trump, or anyone else for that matter. His 2012 landmark majority opinion in National Federation of Independent Business v. Sebelius is a case in point. I won't go into all the details of the actual decision - you can read my synopsis here - but suffice to say Roberts pulled the legal equivalent of a rabbit out of his hat. Rather than side with his fellow conservatives who wanted to gut the whole law, Roberts decided to split the proverbial baby in two. By calling the mandate a tax - which even the Obama Administration didn't do - he allowed it to remain in tact and thus saved the Affordable Care Act from extinction.

There was only one reason Roberts made what many legal scholars believed was the most bizarre decision of his judicial career. He didn't want the court that he was presiding over to ostensibly wipe out a law that was legally passed by both chambers of Congress and signed by a duly elected president. The unwillingness of conservative justices, like Antonin Scalia and alleged swing vote Anthony Kennedy, to allow part of the law to survive was the tipping point for him. If the only choice was to gut the ACA or leave it alone, Roberts opted for the latter.

Roberts took a lot of flack for that decision. While progressives may have praised him for his courage, conservatives assailed him as a traitor. The dissenting opinion, which many have speculated was originally intended to be the majority opinion, all but accused Roberts of rewriting the law to allow it to stand. In the end, I doubt Roberts cared all that much what people thought of his decision; his only concern was the reputation of the Court.

And that's why I think - but won't go out on a limb to predict - that if Democrats subpoena Trump's tax returns and he fights them all the way to the Supreme Court, it will be Roberts who will be the swing vote that allows the nation to finally see once and for all where this man's income comes from. Trump knows this, or at least has been told as much by his lawyers. That's why he's picking a fight with the judicial branch. It's stupid from a legal perspective; but from a political one, if and when he loses, it will allow him to once again frame the whole debate as yet another example of the "deep state" out to get him.

This weaponizing of the judiciary poses one of the gravest threats to the Republic we've yet seen from this president. John Roberts is rightly concerned about the damage such rhetoric can do and he's done being shy about it. His condemnation of Trump might be remarkable and unprecedented, but it will pale in comparison to the impact he could end up making in a few months.

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