In the Case of Trump vs. Roberts, the President Prevails

Who gets it right, President Donald Trump or Chief Justice John Roberts? The president earlier this week attacked “Obama judges,” whom he believes are erroneously interpreting the law and the Constitution to frustrate his administration’s policy initiatives. The chief justice told the Associated Press on Wednesday there is no such partisan thing. All federal judges, Roberts explained, essentially are noble public servants striving selflessly to apply a neutral rule of law.

The president, of course, is  correct—though we can wish that the chief justice were, too.

Say this for John Roberts: he probably really does believe that the members of the Supreme Court, at least, strive together to reach the right result. When he claimed at his 2005 confirmation hearings that justices are simply “umpires,” neutrally applying pre-existing rules, he likely was being sincere.

The chief justice, like his great predecessor John Marshall, wants his court to be above politics. Remaining above the political fray would help explain his unfathomable opinion in NFIB v. Sibelius, where he wrote for a majority consisting of himself and the four liberals then on the court and invoked a dubious theory involving Congress’s power to tax, which he used to uphold the clearly unconstitutional and falsely labelled Patient Protection and Affordable Care Act (“Obamacare”). In that way, one suspects, Roberts thought he could avoid plunging the court into another maelstrom like the one it encountered with Bush v. Gore, when so many Americans wrongly concluded the court was simply favoring a Republican over a Democrat.

Perhaps Roberts believes that in rebutting the president’s attack on judges who are using politics rather than the law to make decisions, he will protect the judiciary from the charge that it is partisan, and thus help to preserve the noble American ideal that ours is a government of laws, not men. Preserving that noble ideal is indeed worthy, and perhaps it is even true that most judges, at most times, are not simply political actors.

But it is the president, not the chief justice, who is most faithful to our tradition in this case.

Dueling Theories of Jurisprudence
The judges on the Ninth Circuit and in other jurisdictions who spin spurious theories to deny the president the authority clearly given by legislation and the Constitution—authority that other presidents have exercised without comment or rebuke—are misguided and should be corrected.

We are at an extraordinary period in history when one of our political parties, the Democrats, has become committed to a jurisprudential theory at odds with our tradition, while the other, the Republicans, exemplified by the president, and, oddly enough, the chief justice (most of the time, anyway) still embodies that original understanding.

The notion is now completely dominant in our law schools, in the media, and on one side of the aisle in Congress, that it is the job of judges to refashion the law and the Constitution along progressive ends, to mold our jurisprudence, as the Warren Court did, to meet what they perceive to be the needs of the times.

Somehow, however, others (including the president) recognize that many judges appointed by Democrats, when they engage in legislating new rules, are betraying our constitutional scheme, where lawmaking is supposed to be for the legislature, not for the judiciary. For judges to make law, to depart from precedent and from original understanding—in other words, to ignore the strictures of the Constitution and our statutes—is to deprive us of self-government. Paradoxically, then, for these appointees of Democratic presidents to frustrate the acts of the president, is to betray the very democracy they claim to represent.

Resisting Judge-Made Law
For almost a generation, a group of law students and lawyers, banded together as the Federalist Society for Law and Social Policy, have been seeking to spread the understanding that this now dominant “living Constitution,” or progressive judicial theory, is misguided and dangerous to our ideals of separation of powers and dual state and federal sovereignty. President Trump’s nominees to the Supreme Court, Neil Gorsuch and Brett Kavanaugh, came from a list of suggested names who embrace Federalist Society beliefs.

The president probably also understands that he owes his election to a feeling on the part of much of the American electorate that for too long social policy has been formulated and implemented not by the people’s representatives, but by judges.

Indeed, the president and the Federalist Society probably both grasp that the current deep divisions in the country have been caused partly by a federal judiciary and a federal leviathan exercising power that, to paraphrase the 10th Amendment, properly belongs to the states and to the American people themselves.

The progressives’ judiciary acted from seemingly laudable motives, seeking to promote equality and other favored causes among all Americans, but in depriving their fellow citizens of the right to determine how to live their own lives, the judges struck at the purpose of the rule of law itself. Taking back their own government is what motivated much if not all of President Trump’s support, something the Left still finds it difficult to understand.

I suspect that Chief Justice Roberts’s statement on the judicial role was not meant as a rebuke of the president so much as a simple affirmation that we seek to be governed by our laws and Constitution, and not by the whims of particular jurists. The Federalist Society, President Trump’s nominees to the court, and even Justice Roberts, understand that conservatives do not seek to impose their own views on the polity, but simply to follow the pre-existing rules.

Sadly, it will fall to Roberts’s court ultimately to administer the needed rebuke to the errant judges whom the president has properly excoriated.

Photo Credit: Jim Watson/AFP/Getty Images

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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.