What John Roberts’s Rebuke of Trump Left Out
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Yesterday, the Trump administration battled against a federal judge using the instruments of the law. After James Boasberg demanded answers on why hundreds of Venezuelans had been rendered to El Salvador, in apparent defiance of an order he gave, Justice Department attorneys tried to get a hearing canceled, then refused to tell the judge much and suggested he be removed from the case.
This morning, Donald Trump himself entered the fray, using the instruments of politics. “This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President,” he posted on Truth Social. “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”
That was enough to provoke a reply from Chief Justice John Roberts, who seldom makes public comments. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose,” he said in a statement. For Roberts, that qualifies as a sharp response.
The chief justice is right. Trump’s attack on Boasberg is juvenile, civically illiterate, and perilous to the rule of law. (It was also just an echo of his sidekick Elon Musk’s recent rants about courts.) But the statement is notable for what it leaves out: any acknowledgment of the substantive dispute in the case, which is whether Trump is defying court orders. Roberts seems more concerned about rhetorical attacks on the personal integrity or employment status of judges than he does with systemic attacks on the judiciary as a whole.
In his end-of-year report last year, Roberts wrote that “elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.” These suggestions are no longer sporadic, and they are largely coming from one party, yet Roberts’s focus now is on the personal.
The odds of a successful impeachment of Boasberg right now are roughly nil, despite the filing of articles of impeachment by a Republican House backbencher. But the administration does appear to have flouted Boasberg’s order—he’s now trying to determine the facts—following weeks of threats to defy judges. Another judge’s order in a deportation case was also ignored this weekend, though the government claims that it hadn’t received official notice. Even if Trump hasn’t yet explicitly defied a court, he appears to be laying the groundwork to do so.
This focus on personal as opposed to systemic attacks is something of a pattern for Roberts. In 2010, President Barack Obama criticized a Supreme Court ruling during his State of the Union, inducing Justice Samuel Alito to shake his head and mouth “Not true.” A few months later, Roberts called the moment “very troubling”—less because of Obama’s criticism itself than because of the venue and the attendance of several justices.
In 2018, Roberts rebuked Trump for calling a different judge who’d ruled against him an “Obama judge.” In a statement just before Thanksgiving, Roberts said, “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. That independent judiciary is something we should all be thankful for.”
The corrective drew a chastened response from Tru—nah, just kidding. “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,” he posted on Twitter. And if that’s the way Trump responded in his first term, we can guess how he might reply now, given the lack of relative restraint he has shown more broadly.
The personal differences between Roberts, a quiet and intellectual lawyer of serious ideological commitment, and Trump, a noisy and brash politician more interested in personality than policy, are great. On their views of presidential power, the men are less far apart. Last summer, Roberts wrote a decision for the court that conferred great immunity on Trump’s actions as president. My colleague Adam Serwer noted this connection recently, after Trump approached Roberts following the president’s speech to a joint session of Congress and said, “Thank you again. Thank you again. I won’t forget.” (Trump later said he was expressing gratitude for Roberts swearing him in.) He is unlikely to remember today’s admonition as fondly.
Roberts admittedly has no good options. Perhaps he doesn’t want to weigh in on Trump’s apparent willingness to defy courts because he expects these matters to reach the Supreme Court and doesn’t want to appear to be an interested party. Or perhaps Roberts is less bothered because he believes that the president will prevail on these matters at the Supreme Court. Trump is effective at destroying norms because he forces institutions and individuals to either succumb to his partisan logic or else avoid the fight and thus cede the debate to him.
During his confirmation hearings to be chief justice, Roberts famously likened judges to umpires, calling balls and strikes. But his statement today is akin to responding to the Black Sox scandal by defending the officiating. The players here aren’t arguing about the strike zone; they’re trying to rig the game.