U.S. Supreme Court Justice John Roberts offered a rare public criticism of the President on Wednesday when he disputed President Trump’s claim that an “Obama judge” had blocked his effort to deny asylum to those entering the country illegally. Roberts said that the U.S. doesn’t have “Obama judges or Trump judges, Bush judges or Clinton judges.” He seemed to take the President’s claim that there was political basis in many rulings as an attack on an independent judiciary and went on to applaud the “extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” This was a naive statement at best by Justice Roberts if not dishonest. Clearly, certain courts, appointed by Obama or other liberal presidents, make rulings outside the law that favor their political points of view and in some cases it has happen with conservative courts as well (although the rule of law conservative political views by their nature restrain ruling outside the law). As President Trump pointed out, liberals go to the Ninth Circuit to get his authorities overturned because they could not get such favorable rulings in other courts. That fact alone makes it clear that there is political bias from court to court, at least from time to time.
More disturbing was the fact that Roberts was silent when President Barack Obama attacked the Court during the 2010 State of the Union address for a ruling he disliked while six of the nine justices were sitting in front of him. There was no defense of the independence of the Court from this unprecedented assault by Obama. When oral arguments in the Obamacare case appeared to be going against his administration, Obama warned the Supreme Court against “an unelected group of people” overturning the law. Again, no defense of the Court from Roberts. In fact, he effectively rewrote the law to save Obamacare.
The idea that criticizing the Courts, even by a President, is somehow attacking the independence of the Court is fundamentally incorrect. Arguably, the opposite is true. The Courts, including the Supreme Court, were not given the authority to do anything but interpret the law and when clear political bias causes them to create rulings outside the law, they should be criticized. The Constitution does not give the Supreme Court or any other court the power to strike down laws. This right was “discovered” by the Supreme Court for itself in the 1803 Marbury vs. Madison case. This effectively allows the least democratic branch of government to overrule the elected branches. Should nine judges really be the ones to divine the one true meaning of words and phrases in the Constitution that the long-dead framers and ratifiers never discussed or contemplated? That is a discussion for another article but clearly persons like Justice Roberts do not want an independent judiciary but one with the power to rule and be shielded from criticism, including from the other branches of government.
A June 2012 poll found that just 13 percent of respondents said that Supreme Court justices decide their cases based purely on legal analysis, while 76 percent said they let their personal political views influence their decisions. This is apparent on its face and certainly President Trump was correct in pointing this out.