Chief Justice Learns There’s No Compromising With Trump

(Bloomberg Opinion) -- The Democratic House of Representatives isn’t the only branch of the U.S. government headed for a clash with President Donald Trump. The Supreme Court is, too.

The most recent evidence is the fight between Trump and Chief Justice John Roberts over whether it’s appropriate to categorize jurists as “Obama judges,” “Bush judges” and “Trump judges.” But the crisis has been building for two years, and the time has come for Roberts to act.

On the surface, it seems surprising that the conflict between Trump and the court would be coming out only now. Unlike the House, which has gone Democratic as a result of this month's midterm election, the Supreme Court has gotten more Trump-friendly in its composition, not less. In his first two years in office, Trump added two conservative justices, presumably consolidating the shaky conservative majority that depended on swing voter Justice Anthony Kennedy before he retired over the summer.

And while Trump has lost some medium-sized battles with the judiciary as a whole, mostly over obviously unconstitutional executive orders, he actually won a partial victory in the highest-profile case to come before the Supreme Court during his presidency, namely Trump v. Hawaii, the Muslim travel ban case.

What’s more, while there are important cases making their way to the court now, including immigration-related cases and the challenge to the constitutionality of the selection of acting Attorney General Matthew Whitaker, there’s no single marquee case involving the administration that’s presently looming.

Under these circumstances, a normal president would have no reason to clash with the court. But Trump, as usual, isn’t playing by normal rules. He learned while running for office that he could gain attention and excite supporters by bashing judges.

Enter Roberts, belatedly. The chief justice is only now realizing that Trump represents a threat to the legitimacy of the judiciary, and therefore to the rule of law. As Roberts sees it, his job as head of the federal court system gives him the obligation to defend judges and the law itself.

Look for Roberts to experiment with different ways to do so. His public statement last week rebutting Trump's claim that a ruling against his administration was a partisan act by "an Obama judge" was only a first salvo, not to mention a learning experience.

It may seem late for Roberts to have recognized Trump’s threat. But it’s worth remembering that the judiciary operates on a different time scale from the rest of the government.

Court-watchers and judicial historians know that there's a long-term give-and-take between the executive branch and the judiciary. That “dialogue,” as it is sometimes metaphorically called, unfolds slowly, via judicial decisions that emerge from cases that wend their way through the courts on their own rhythm.

Two years is actually a pretty short unit of judicial time. In his own mind, under his own sense of the chronological order of things, Roberts has been giving Trump space and time to stop attacking judges and to start respecting the rule of law. He didn’t want to act too early.

The interbranch dialogue has its own logic and rules. And according to those rules, the Supreme Court has been highly accommodating to Trump.

The centerpiece of that now-failed attempt at accommodation is Trump v. Hawaii. The lower federal courts twice rejected early versions of the travel ban. After one of those rulings, the Supreme Court crafted a temporary compromise in June, 2017, that would have let the ban take partial effect with exceptions for spouses, close relatives and some other travelers with relationships to Americans. That was a first attempt by the justices to seek common ground with Trump.

A subsequent White House revision of the travel ban brought the case back to the Supreme Court. That allowed the justices, especially Roberts, to tell themselves that the courts had forced Trump to give up the naked Islamophobia of earlier versions.

That decision by Roberts was a historic mistake that summoned memories of the discredited Korematsu decision of 1945 allowing the internment of Japanese-Americans during World War II.

Roberts thought he was signaling to Trump that if the administration paid proper attention to the forms of law, the court would allow him to pursue his policy agenda. Roberts surely imagined that giving Trump this victory would placate him. Thus, Roberts probably believed he was defending the judiciary.

To Trump, however, the court’s acquiescence just looked like weakness. It gave him more reason, not less, to keep bashing the judiciary.

What can Roberts do now? Public statements from the court are newsworthy only because they are rare. That’s not a card that a chief justice can play often. Trump can fight back, and did, while Roberts can’t do anything but stop talking.

Only judicial decisions checking the executive allow the court to stand up for itself. Roberts is the swing vote on the newly configured court. He’s going to have to find some limits to executive authority — and enforce them.

This won’t happen in one fell swoop. Roberts hasn’t changed his basic philosophical orientation, which is toward slow, stepwise, careful judicial conservatism. Expect him to continue to vote to chip away at abortion rights and affirmative action, for example. Don’t expect him to become a liberal.

But when it comes, say, to the Whitaker appointment, when there is a credible legal argument that runs against the president, expect Roberts to vote against Trump’s unilateral executive action. And expect him to find other opportunities to vote against Trump on executive power overreach.

Roberts knows he must play a long game to preserve the judiciary. He isn’t going to panic or make radical moves.

But he now knows that Trump is the threat to the separation of powers that the president means to be. Expect consequences.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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