The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Roberts' Rules for Defending Judicial Independence and the Rule of Law
The Chief Justice is more consistent than his critics, left and right.
On Monday, Chief Justice Roberts spoke at the Georgetown Law School> Among other things, the Chief repeated his concern about threats to the rule of law and judicial independence. From Politico's report:
Chief Justice John Roberts described the rule of law as "endangered" and warned against "trashing the justices," but speaking in Washington Monday he didn't point fingers directly at President Donald Trump or his allies for publicly excoriating judges who've ruled against aspects of Trump's agenda.
"The notion that rule of law governs is the basic proposition," Roberts said during an appearance at Georgetown Law. "Certainly as a matter of theory, but also as a matter of practice, we need to stop and reflect every now and then how rare that is, certainly rare throughout history, and rare in the world today."
While the Chief Justice may not have "point[ed] fingers" at President Trump or his allies in these remarks, the Chief Justice has responded to President Trump's criticisms of federal judges and calls for impeachment. Indeed, contrary to Politico's suggestion, the Chief Justice has been rather consistent in calling out threats to judicial independence and the rule of law from all quarters--and in this he is the exception.
As I discuss in my latest Civitas Outlook piece, the Chief Justice has been consistent in his appeals to and defense of these principles, whereas most of his critics have not been.
Speaking in Buffalo on May 7, the Chief Justice reiterated his views, noting, "impeachment is not how you register disagreement with decisions." As Roberts explained, judicial independence is "central" to the constitutional structure, adding that "the only real political science innovation in our constitution… is the establishment of an independent judiciary." Alexander Hamilton in Federalist No.22 lamented that the lack of a federal judiciary "to expound and define" the "true meaning" of the laws was among the crowning "defects" of the Articles of Confederation. For the judiciary to play that role, Roberts noted, it cannot be under the sway of either of the other branches. The "innovation" embodied in Article III "doesn't work if the judiciary is not independent."
Donald Trump is hardly the only one to have earned rebukes from the Chief Justice for unwarranted attacks on the judiciary. The Chief Justice's most recent year-end report on the state of the judiciary—released before Trump returned to office – inveighed against threats of violence, intimidation, misinformation about judicial decisions, and threats to defy court orders as serious threats to judicial independence. Though some may have forgotten by December 2024, some prominent progressive voices had suggested that the Biden Administration should consider defying court orders and ignoring the Supreme Court's decisions on high profile matters.
And we should not forgot the Chief Justice's forceful statement in response to Senator Schumer's threatening remarks in front of the Court in 2020.
Those who care more about judicial independence and the rule of law than they do about policy victories or partisan advantage would do well to emulate the Chief Justice's approach. Alas, it seems most commentators only raise concerns about the rule of law when the threats come from an opposing tribe. This feeds cynicism about appeals to such principles and undermines efforts to defend the rule of law.
The failure of legal elites to call out the efforts of prior Democratic administrations to ignore legal constraints and evade judicial review does not excuse the Trump Administration's conduct. Two wrongs do not make a right, and there are plenty of wrongs.
But if one is concerned about defending the rule of law, recognizing that threats may come from multiple directions is necessary, as a matter of prudence and civic hygiene. If one wants to be taken seriously as a defender of neutral values, and not merely a partisan wielding whatever rhetorical sword is useful in the moment, one has to aspire toward consistency. . . .
When legal elites turn a blind eye to threats to judicial independence and the rule of law from their political allies, they degrade the value of their voices. The ability to identify transgressions against one's own interests is a sign of good faith and demonstrates that the principle actually matters and is not simply a useful cudgel to wield in political combat. Conspicuous failures to call out offenses and transgressions by one's allies undercut the speaker's moral authority and make it easy for others to write them off as mere partisan actors deploying aspirational rhetoric. Appeals to neutral principles are heard as political subterfuge—perhaps with reason.
Current concerns about the rule of law are justified. The Trump Administration has shown insufficient regard for legal constraints on executive power and has been unduly adversarial with the federal courts. Some of the administration's actions reek of deliberate indifference to constitutional constraints and a lack of good faith. At the same time, some lower court judges have overreacted, stretching their authority to issue nationwide injunctions and block contestable exercises of executive power. If the rule of law is to be defended, it must be defended on principle, with neither fear nor favor for the direction from which such threats emerge.
Many conservatives concerned about the Trump Administration's legal transgressions will nonetheless refuse to play by rules the opposition will not abide by. Rule of law constraints for thee, but not for me, is not a viable option. Asking constitutionalist conservatives to play Charlie Brown trying to kick the football will end the game, and likely on terms no one will like. Those who would preserve judicial independence and rule of law values should heed this message and emulate the Chief Justice's even-handed concerns before it is too late.
