The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"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."
Chief Justice John Roberts, 11/21/18.
Amen. I didn't want this Thanksgiving to pass without someone here on the Volokh Conspiracy giving a shout out to the Chief Justice for his statement yesterday, responding to President Trump's criticism of "Obama judges" in the 9th Circuit.
Nothing about the Trump presidency has been as disturbing as his unrelenting attack on the federal judiciary—starting all the way back at least as far as his comments during the campaign about the "Mexican judge" who was presiding over the Trump University lawsuit, up to his recent tirades against the 9th Circuit's "Obama judges." He is not the first President to get publicly angry at actions taken by the federal courts. But he is the first President to so relentlessly characterize judicial decision-making as an overtly partisan political act, where "Obama judges" issue their (politically-motivated) rulings—Boo-o-o!—and "Trump judges" issue their (politically-motivated) rulings—Ya-a-ay!. It's all just politics, played out in a courtroom.
His words have real consequences, and the consequences here are very serious and very troubling, even frightening. If Americans come to believe that federal judges are nothing more than partisan politicians wearing robes, that there are Democratic judges issuing Democratic decisions and Republican judges issuing Republican decisions, we are one step away from a very frightening precipice, one where Democrats believe they are entitled to disregard Republican decisions and Republicans believe they are entitled to disregard Democratic decisions.
Judicial systems can crumble, leaving nothing but power and might, force and terror, as ruling principles; they have done so, repeatedly, throughout human history. We should perhaps accept Chief Justice Roberts' invitation on this Thanksgiving day to be thankful that ours has not done so, and to speak out against, and resist, efforts to make it do so.
And Happy Thanksgiving to all!
And PS [added 11-22 @ 930AM]: In case you were wondering, as I was, where the rather curious phrase "do equal right" in Roberts' statement comes from, it is from the judicial oath that all federal judges must take. See 28 USC 453:
"Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, ——, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God."