CNN —
Once again, it comes down to John Roberts and Donald Trump.
It was Chief Justice Roberts, of course, who wrote last year’s Supreme Court decision giving then-candidate Trump substantial immunity from criminal prosecution. But in recent weeks, it also was Roberts who steered the court in its calibrated approach to litigation arising from President Trump’s orders overhauling government – refusing to give administration lawyers the quick endorsement they sought.
Since 2017, when Trump began his first presidential term, Roberts has been both an enabler and a restraint on Trump’s agenda.
After weeks of silence to Trump’s rants against the judiciary, Roberts was likely provoked on Tuesday by a heated post referring to a federal judge currently handling a migrant deportation case as “crooked.” Trump declared the judge “should be IMPEACHED!!!”
Soon after, Roberts issued a statement: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
For US district court judges, currently on the front lines of the Trump litigation, Roberts’ defense was heartening, if overdue.
For retired Justice Stephen Breyer, the statement met the moment.
“It’s informative. It’s short. It doesn’t blame anyone or praise anyone. It says if you don’t like what the judge holds, appeal,” Breyer told CNN, repeating, “Appeal.”
As the top leaders of the judicial and executive branches, Roberts and Trump have now had two dramatic clashes. Roberts’ Tuesday statement recalled a similar rebuke of Trump in 2018.
More broadly, the episode offered a reminder of the roles the two leaders – Roberts, age 70 and appointed for life, and Trump, age 78 and beginning a second term – continue to play in each other’s sphere and the public eye.
Since his inauguration on January 20, Trump has signed dozens of executive orders attempting to impose tougher restrictions on immigrants, slash the federal workforce and freeze funds already appropriated by Congress.
Federal employees, civil rights and immigration advocates, states and organizations that receive public funds have sued. Most of the litigation is still working its way up from US district court judges, the first tier of three-level federal judiciary.
In the few cases that have reached the Supreme Court on a preliminary basis, the justices have declined to accept Trump’s appeals for urgency and slowed down timelines for action.
For now, Roberts and a cross-ideological majority have so far signaled a degree of moderation and compromise. That was the opposite message of last July’s 6-3 immunity decision, along rancorous ideological lines, that allowed Trump to elude charges for election subversion stemming from the 2020 election.
At this stage, it is largely lower court judges embroiled in challenges to Trump’s government overhaul and his pressure on constitutional boundaries. Individual judges have been torn on how vocally to call out the administration’s more audacious initiatives.
A case currently before US District Court Judge James Boasberg ignited Trump’s rage. Boasberg, based in Washington, DC, has been seeking information about deportations the administration carried out last weekend on some migrants allegedly affiliated with a Venezuelan gang. Boasberg wants to determine whether the administration defied an earlier order he had imposed to stop deportations based on the 1798 Alien Enemies Act.
Trump’s post on Truth Social referred to Boasberg as a “Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama” before declaring outlandishly that the judge should be impeached.
All federal judges are appointed for life and can be removed only by impeachment in the House and conviction of the Senate; the rarely used process has been essentially reserved for judges who’ve engaged in criminal behavior.
As Roberts and Breyer straightforwardly observed, the process for any litigant who loses a case is an appeal, first to a US appellate court and then to the nine-member US Supreme Court. (The Justice Department has already appealed Boasberg’s ruling.)
Trump later Tuesday acknowledged Roberts’ statement, but said, “He didn’t mention my name.” In his conversation with Fox News’ Laura Ingraham, Trump avoided any antagonism directed at Roberts. Instead, he again derided lower court judges.
“We have bad judges,” Trump said, later adding, “I think at a certain point you have to start looking at, what do you do when you have a rogue judge?”
Roberts publicly addressed Trump’s criticism of judges only once during the president’s first term. In the earlier instance, Trump had also invoked Obama’s name.
After a San Francisco-based US district court judge issued a preliminary decision against a Trump’s first-term asylum policy, the president denounced him as an “Obama judge” and added to reporters, “I’ll tell you what, it’s not going to happen like this anymore.”
Roberts countered with a statement that began, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” He said all judges were “doing their level best to do equal right to those appearing before them.”
In decisions on the merits of administration policy, Roberts often sided with the Trump agenda, writing a 2018 decision, for example, that upheld a travel ban that affected majority-Muslim countries. There were exceptions, however. Roberts appeared to bring more skepticism to the administration’s moves, as when he cast a crucial last-minute vote in 2019 against Trump lawyers’ asserted rationale for adding a citizenship query to the 2020 census questionnaire.
Roberts and his colleagues will be tested even more during this second chapter of Trump. And Roberts is likely to face even more public scrutiny of any bond with Trump.
Earlier this month, after Trump’s speech to a joint session of Congress, the president shook hands with the justices as he left the chamber.
When Trump reached Roberts, Trump patted his arm and said, “Thank you again. Won’t forget it.”
After the exchange lit up social media, with many observers believing Trump was expressing gratitude for the immunity decision, Trump himself posted, “I thanked him for SWEARING ME IN ON INAUGURATION DAY, AND DOING A REALLY GOOD JOB IN SO DOING!”
Whatever Roberts thought, he turned on his heels and left the chamber.
