President-elect Donald Trump’s recent defeat at the Supreme Court tells us important things about the high court. By a 5-4 vote the Supremes refused to block Trump’s sentencing in the New York hush money trial.
In the majority was Trump appointee Justice Amy Coney Barrett and, significantly Chief Justice John Roberts. Roberts understands that the court is not a mere collection of political hacks. As he emphasized in 2018, there are no “Obama judges” or “Trump judges” on the bench. Instead, judges in the United States have the independence to choose law over the orders or exhortations of any politician.
And that’s what happened in Trump’s recent case. Because they didn’t write opinions about it, we will never know why four members of the Court voted to hear Trump, but we also can’t be sure that they would have all voted Trump’s way after hearing him. What we do know is that the court permitted Trump to become the first president in history to hold office as a convicted felon. One of his own appointees allowed that to be the case along with the holder of the most prestigious legal office in America—the chief justice.
So, hands off the chief. Roberts is no hack. He’s an institutionalist concerned about the future of the judiciary during a time in which it has swung from left to right. Yet, his recent annual message seeking understanding of the institution was seen as hypocritical and even partisan.
It was just the opposite. Roberts criticized public officials who bash the courts for political gain. His message correctly reminds us of the wholly inappropriate remark Senate Majority Leader Chuck Schumer made after Roe v. Wade was overturned that two justices have “released the whirlwind” and “won’t know what hit them.” Hit them with what?
But you would have to be blind not to see that the chief was also aiming directly at Donald Trump when he denounced those who “falsely claim that the judge had it in for them because of the… political party of the President who appointed the judge” or who suggest “bias in the judge’s adverse rulings without a credible basis for such allegations.” He could have put Trump’s picture next to that part and we would all have known why.
Roberts is right. It’s one thing to strongly disagree with judges and another to falsely claim that they are corrupt in an effort to delegitimize the courts and encourage violence toward them. As he documented in the report, intimidation, including threats of violence have increased precipitously in recent years, and so has actual violence. The courts are slow enough already. Think about a judge reading that a colleague was gunned down in his own driveway by a disappointed litigant. If you don’t think this will discourage judges from taking courageous stands in controversial cases, then you don’t know much about people.
None of this is to agree with Roberts’s views in several cases. The court has made some dangerous moves over the years, not least of which were unleashing a storm of money into politics by striking down campaign finance laws, unleashing presidents to commit crimes, and allowing an insurrectionist former president onto the ballot despite plain language in the Constitution forbidding it.
But the last ruling in particular proves the point. The decision to overturn the Colorado ruling barring Trump from the ballot under Section 3 of the Fourteenth Amendment was unanimous. All of the justices ignored a legal mandate to consider whether Trump engaged in insurrection and remove him from the ballot if he did. The world will regret that they ducked the issue by saying Congress needed implementing legislation. And, yes, some justices should also regret embarrassing the court by needlessly attracting attention to their ethics.
And yet, while the court did these things, among other things last year, it also protected workers’ rights, upheld firearms restrictions, and enhanced the protections of criminal defendants against double jeopardy.
With the court leaning to the right, the left will be upset, just as the right was once upset by left-leaning justices. Neither then, nor now, are the justices’ shifting views proof of corruption or excuses for extremism. So, hold your views, but hold the inflammatory rhetoric too.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.
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