Chief Justice John Roberts has recently come under fire for his perceived reticence regarding former President Donald Trump’s attacks on the judiciary. Ambassador to Australia, former Judge J. Michael Luttig—legally esteemed and justice-connected—burst into the national conversation. He criticized Roberts in the sharpest terms for not taking a harder line to protect federal judges. This criticism highlights the complicated and sometimes adversarial dynamic between the judiciary and the executive branch. It was especially egregious during the Trump administration.
Make no mistake—Roberts has artfully pirouetted past many of the most toxic judicial confirmations and culture wars in his long career. In fact, he mentored Texas Senator Ted Cruz and was highly instrumental in shepherding Justice Clarence Thomas through his ugly confirmation hearing in 1991. Beyond his legal experience, he’s operated in the grey space. That expertise has bestowed upon him a keen understanding of the complexities of judicial politics.
In a rare outburst of honesty from 2018, Roberts exclaimed that there are no “Obama judges” or “Trump judges.” He called for “independence” and “impartiality” of the judiciary. Critics have charged that he leads very selectively to Trump’s attacks. Such extreme partisan gerrymandering raises troubling questions about the safety and independence of our federal judges. Luttig pointed out that it is Roberts’ “highest obligation as chief justice of the United States to speak for the safety of federal judges,” underscoring the gravity of the situation.
Luttig noted, “I said, Nicolle, it would not just be helpful, it’s obligatory. It’s a profound obligation. It’s his highest obligation as chief justice of the United States to speak for the safety of federal judges in this country and I said his problem is that would require condemning the president of the United States.”
The picture is bleak for the Supreme Court. In the last two national polls, just 47 percent of Americans express a positive opinion of the institution, and 51 percent view it unfavorably. This decline may be linked to Roberts’ actions and his perceived failure to address the ongoing tensions between the judiciary and Trump.
Luttig emphasized his disappointment with Roberts’ approach, stating that “there is nothing that John Roberts is not aware of and, at the top of that list, is self-awareness. He knows everything that’s going on and that’s why I’ve been so disappointed in him.” He lamented that we now have federal judges unsure of their standing and safety in the face of political upheaval.
Shaughnessy took Roberts to task for issuing vague and “unclear statements” while blaming both major political parties for the abuses. Luttig remarked, “It was unforgivable, in my view, for the chief to continue to make these broad statements, meaningless statements, and attribute the misconduct to all of us.” Roberts’ leadership, and perhaps this sentiment reflects a growing frustration among legal experts with Roberts’ leadership.
Roberts has withstood pressure from critics. He has repeatedly asserted that impeachment is not the right solution to dissenting views on judicial rulings. He previously stated that he understands “the two issues that plague him,” alluding to both internal court dynamics and external political pressures.
As Luttig maintains, Roberts’ failure to act has sweeping consequences. He stated, “He has made the decision between the moment and history already, and he cannot recover that decision.” This commentary suggests that Roberts’ legacy as Chief Justice may be defined by his response—or lack thereof—to the challenges posed by Trump’s presidency.
In the uproar over Roberts’ stewardship, the former President Trump was easily able to deflect criticism being aimed at him. He noted that Roberts’ name was never mentioned specifically when calling for judicial independence. In recent weeks, President Trump’s remarks have highlighted the real disconnect that exists today between the executive branch and the judiciary.
As Roberts continues to navigate these turbulent waters, he remains acutely aware of his responsibilities and the expectations placed upon him as Chief Justice. The further that independence is stretched, the greater the pressure he faces to crack under competing demands for that independence and the just reality of the current political environment.