Well, one thing we know about Chief Justice Roberts: he’s not a “Trump judge.”
You’ve probably heard about the back-and-forth between Trump and Roberts on the issue of the partisanship of the judiciary. To recap:
Mr Trump on Tuesday called a jurist who ruled against his asylum policy an “Obama judge”.
The president’s gibe provoked a stern statement from the head of America’s highest court…
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice Roberts told the Associated Press.
“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Speaking on the eve of America’s Thanksgiving holiday, he said an “independent judiciary is something we should all be thankful for”.
Mr Trump responded on Twitter on Wednesday, saying the top justice was wrong and that “Obama judges… have a much different point of view than the people who are charged with the safety of our country”.
Trump isn’t the only one who responded. As you might imagine, each man had his defenders and detractors. Chuck Schumer’s response was especially noteworthy, containing its own internal contradiction. He essentially makes an ass of himself, at least for those who pay attention to such trifles as logic:
You can’t make this stuff up, although the Onion—and Chuck Schumer—can.
My own reaction (which I hope won’t contain any internal contradictions) is the following.
Firstly, it strikes me that the dispute between Roberts and Trump is a typical DonQuixote/SanchoPanza dispute. Roberts is stating an ideal that does not exist in the real world, and what’s more just about everybody knows that Trump is stating something that seems very very real. But although that’s the case—and the bitterness of so many confirmation fights in recent decades have made it crystal clear—presidents aren’t supposed to actually say that sort of thing, and SCOTUS chief justices certainly aren’t supposed to say it. So Roberts is defending what he sees as the integrity of the judicial system, and his own integrity as a justice who no doubt prizes his own idea of his own lack of partisanship and his devotion to objectivity.
But that’s just “firstly.” Secondly, maybe what passes for political partisanship—and acts as partisanship—on the part of judges is merely a reflection of a deeper divide between left and right, a divide based on judicial philosophy. To put it in a very simplistic (perhaps too simplistic) way, judges appointed by Democratic administrations usually operate under the idea that the Constitution is a document that must adapt to modern times, and can be stretched and reshaped to find penumbras and intents to fit whatever the left happens to think is a worthy cause. Judges appointed by Republican administrations usually (although certainly not always, since there is variation as well as “changers” among them) operate under a more restricted idea of what judges must do: to interpret cases in accord with the intent of the Founders and the words of the Constitution, plus case law to a greater or lesser extent.
These two philosophies lead to very different results, and those results are relatively consistent and predictable.
Thirdly (yes, there’s a thirdly), I believe that Roberts is also reacting to the pernicious influence of something called “critical legal studies,” although I doubt that motive is perceived by most people. Maybe I’m even wrong about this underlying element in Roberts’ statement, but I think it’s a distinct possibility that I’m correct.
I keep meaning to write a long post on critical legal studies, but I haven’t done it yet. Critical legal studies got going in law schools during the 70s, during the time Justice Roberts would have been in law school. Here’s a brief idea of what the movement was about in those days:
The critical legal studies movement emerged in the mid-1970s as a network of leftist law professors in the United States who developed the realist indeterminacy thesis in the service of leftist ideals…
Duncan Kennedy, a Harvard law professor who along with Unger was one of the key figures in the movement, has said that, in the early days of critical legal studies, “just about everyone in the network was a white male with some interest in 60s style radical politics or radical sentiment of one kind or another. Some came from Marxist backgrounds–some came from democratic reform.” Kennedy has emphasized the twofold nature of critical legal studies, as both a network of leftist scholar/activists and a scholarly literature…
The approach is too complex to go into here, and it has many components. Its practitioners have become extremely influential in legal education. One of its main philosophies is that the idea of the judiciary as an objective impartial interpreter of law is invalid and incorrect. And not only invalid and incorrect, but not even desirable or possible as a goal. Instead:
…there is the idea that all “law is politics”. This means that legal decisions are a form of political decision, but not that it is impossible to tell judicial and legislative acts apart. Rather, CLS have argued that while the form may differ, both are based around the construction and maintenance of a form of social space. The argument takes aim at the positivist idea that law and politics can be entirely separated from one another.
Chief Justice Roberts may have thought he was upholding the idea of the judiciary as something different from “politics by another name,” and the notion that objectivity is a good thing and something to strive for even if not always achieved. If so, he’s a day late and a dollar short.
[NOTE: You may remember that, when Sotomayor was nominated, we heard about a previous speech of hers in which she’d said:
I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.
I wrote this post in response:
Sotomayor has abandoned the idea that the possession of judicial wisdom is something that is—or should be—color and gender blind, that it ought to have a certain reality that transcends a judge’s own personal history. In other words, she does not believe that those who dispense justice can be impartially and equally wise, and that wisdom is something separate from one’s gender and ethnic identity.
Impartiality may be difficult or even impossible to achieve, and reasonable men (and women!) can differ about when it is being displayed, but one of the most sacred and important foundations of our legal system is that it is nevertheless something for which we must strive…
…[I]t’s no accident Obama chose Sotomayor as the first of what will probably be several picks for Supreme Court Justice. They are both on the same page about justice: it is what they, in their infinite wisdom and valuable life experience as members of minorities defined as underprivileged and worthy of special and favored treatment, declare it to be. Not what a bunch of less-wise white men who “haven’t lived that life” might think it is. But paradoxically, the idea that there is some superiority inherent in a person’s racial or gender makeup is an example of a pernicious type of thinking that our rule of law has evolved to combat.
Was countering that sort of thing also in Chief Justice Roberts’ mind when he responded to what Trump had said? I don’t know, but I think maybe.]