Donald Trump and John Roberts: Two sides of a US judiciary under pressure

WASHINGTON - For two of the most powerful men in the United States, President Donald Trump and Supreme Court Chief Justice John Roberts, it has been a delicate dance from the start. 

In 2015, the man who would become the chief executive of the United States assailed the integrity of its chief justice, calling Mr Roberts “disgraceful” and “disappointing” – and, later, an “absolute disaster” – for earlier upholding the Affordable Care Act, the Obamacare law that Mr Trump subsequently sought to repeal. 

A little more than a year later on the US Capitol steps, Mr Roberts, an enigmatic conservative Supreme Court justice from the American Midwest, swore in Mr Trump, a brash businessman-turned-politician from New York City, as president.

Any lingering tension had evaporated under smiles, handshakes and a backdrop of applause. 

Since then, the dynamic between the two has remained complicated, marked by dramatic legal wins for Mr Trump as well as painful losses, and punctuated by clashes between the two as Mr Trump shattered norms by aggressively pushing his policies while brooking little dissent – including from the co-equal branch of government that Mr Roberts leads: the judiciary. 

The tension has risen once again, culminating in an extraordinary public statement by Mr Roberts on March 18 rebuking the Republican President for urging the impeachment of a Washington-based federal judge who faulted the administration’s actions in a dispute over the legality of deportation flights.

“For more than two centuries,” Mr Roberts said, “it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision”.

For Mr Roberts, who is seen as deeply conservative but also concerned about the institutional credibility and perception of the Supreme Court, chastising Mr Trump puts him in a difficult spot.

It has drawn sharp criticism from Mr Trump's allies and comes as the court braces itself for the flood of legal challenges to Mr Trump's myriad executive actions.

A certain measure of contempt

“I suspect Roberts has a certain measure of contempt for Trump and the way he treats judges,” said University of Michigan law professor Richard Friedman, a Supreme Court historian.

“Roberts is an establishment Republican, but I think he’s horrified.” 

While Mr Roberts and Mr Trump often may converge on legal and substantive goals, there are sharp divergences emerging, according to University of Chicago constitutional law expert Aziz Huq. 

Through his flurry of executive actions to shutter federal departments, fire thousands of federal employees, target perceived enemies and eradicate policies he dislikes such as diversity mandates from the public and private sectors, Mr Trump is “proceeding as if legal constraints don’t matter”, Professor Huq said.

“If presidents are not bound by statutes, if they’re not bound by regulations, if they’re not bound by the (US Constitution’s) First Amendment, then it’s not really clear what the job of the Supreme Court is,” Prof Huq added. 

Prof Huq said that the “casting into institutional doubt of the court’s role is I think the hard nub of conflict between the two”.

Since Mr Trump first took office in 2017, Mr Roberts has figured prominently in the President’s fortunes, and in many ways, vice versa. 

Mr Trump appointed three justices in his first term, creating the 6-3 conservative majority that Mr Roberts needed to deliver landmark rulings rolling back abortion rights and affirmative action practices, expanding gun rights and curbing federal regulatory power.

Mr Roberts, meanwhile, presided over the first of Mr Trump's two impeachment trials – he was acquitted both times – and has penned Supreme Court rulings that both boosted the President – including by granting him broad immunity from criminal prosecution – and constrained him at key moments. 

The landmark immunity ruling authored by Mr Roberts last July involved federal criminal charges against Mr Trump over his efforts to undo his 2020 presidential election loss to Democrat Joe Biden, bolstering his bid to regain the presidency by effectively delaying a trial that ultimately never took place.

Mr Trump thanked Mr Roberts as Supreme Court justices attended the President’s address to a joint session of Congress in March.

“I won’t forget,” Mr Trump added. 

The President later stated that he was thanking Mr Roberts for swearing him into office.

“It’s very hard to see that decision as being anything but highly consequential in electoral terms, and as anything other than a real choice on Roberts’ part,” Prof Huq said of the immunity case. “Having done that, what does he think now?” 

Travel ban

Mr Roberts also authored a ruling that gave Mr Trump one of his biggest victories during his first term,

upholding his travel ban

blocking people from several Muslim-majority countries from coming to the United States against claims that the policy represented religious discrimination in violation of the Constitution. 

Mr Trump’s administration now is considering issuing a new travel ban that could include dozens of countries. 

On the other hand, Mr Roberts has handed Mr Trump some setbacks.

In recent weeks, Mr Roberts joined a narrow majority of Supreme Court justices in declining to let Mr Trump immediately fire the head of a federal watchdog agency or

withhold payment to foreign aid organisations

for work they already performed for the government – though neither decision resolved the legal merits of the cases.

In 2019, Mr Roberts joined the court’s liberal justices to block his plan to add a contentious citizenship question to the national census questionnaire, prompting Mr Trump to suggest that the administration would find a way to move forward anyway – before backing down. 

In 2020, Mr Roberts wrote a ruling that let a New York prosecutor obtain Mr Trump’s financial records, and the chief justice again joined the liberals to block Mr Trump’s bid to end a programme protecting from deportation immigrants – known as “Dreamers” – who entered the United States illegally as children.

“These horrible and politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” Mr Trump wrote on social media after that ruling.

Prof Friedman said: “From Trump’s point of view, it may be very perplexing because he thinks you’re going to have a judge entirely in his favour or against. But that’s not the way the world works. From Roberts’ point of view, there’s no mystery. He’s deciding cases.”

Mr Roberts, according to Prof Friedman, “is a good, smart lawyer with an allegiance to constitutional procedures. And that’s something that’s a little bit out of Trump’s understanding”.

A previous rebuke 

The chief justice’s rebuke of Mr Trump on March 18 was not his first. 

After Mr Trump in 2018 called a federal judge appointed by Democratic former President Barack Obama who ruled against his policy barring asylum for certain immigrants an “Obama judge”, Mr Roberts responded in a statement.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Mr Roberts wrote, referring to former presidents who made the appointments and emphasising the importance of an independent judiciary. 

In recent weeks, some legal scholars and Trump critics have questioned whether his administration’s pushback against orders by judges impeding his policies amounts to defiance of the judiciary by the executive branch, which could provoke a constitutional crisis. 

Asked during a March 18 interview on the Fox News programme “The Ingraham Angle” whether he would defy a court order, Mr Trump said: “No, you can’t do that,” but also said that there are “judges that shouldn’t be allowed”.

Whether the administration defied US Judge James Boasberg’s orders to halt deportation flights of alleged gang members to Venezuela is at the heart of Mr Trump’s call for the judge’s impeachment by Congress, which could lead to removal from the bench. 

If Mr Roberts wants to preserve the legitimacy and authority of the Supreme Court, “the issues that are likely coming down the pike are going to put the court’s power to the test”, Albany Law School professor Raymond Brescia said.

“The most important of these issues is the question of the court’s authority to ensure the executive branch complies with court orders,” Prof Brescia said.

“I hope we can expect (Roberts) to support the lower courts in their efforts to ensure compliance with their orders, even if that means seeking to rein in actions of the Trump administration.” REUTERS