President Trump vs. Chief Justice Roberts: Trump is in the Right

President Trump recently slammed the “Obama Judge” who stuck down his order to block the mobile mob along (which media have called “the migrant caravan") the United States’ southern border. In a rare move, United States Supreme Court Justice John Roberts rebuked the President for his criticism of the federal judiciary:

"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," Roberts said.

It’s understandable that the Chief Justice wants to counter any disparaging condemnation that independent judges have gone rogue. Certainly, no one wants to believe that one branch of government has abandoned its responsibility to impartial governance.

However, that’s exactly what is happening under the Trump administration: social justice activism from the bench. Federal judges write their orders imposing sweeping outcomes, the rule of law and supremacy of the United States Constitution be damned! No one should delude themselves into believing that the federal court system is rigorously, unabashedly transparent and unbiased. John Roberts’ unforced error on forced judicial activism has opened up the much-needed debate.

Trump rightly punched back by tweeting, "Sorry Chief Justice John Roberts, but you do indeed have “Obama judges,” and they have a much different point of view than the people who are charged with the safety of our country … We need protection and security."

The President of the United States is not just the chief executive who is to enforce the law, but he is charged with the supreme responsibility of protecting the rights of citizens and securing our nation’s borders from foreign invasion. Progressive attorneys and liberal judges need to revisit Article Four, Section Four of the United States Constitution if they have a problem with the President’s role.

Indeed, many of these judges are acting like “Obama judges” (not just the ones appointed by Obama): desperate progressives shoring up a big government, anti-constitutional legacy at all costs. President Trump has been repeatedly frustrated and delayed because of this rogue judicial supremacy. Trump issued the exact same travel ban as Obama, relying on the previous order, which targeted the same countries, yet Trump faced months of litigation as lower courts aided and abetted the legal version of “The Resistance." All of this legal posturing is about re-litigating and defying Trump’s 2016 victory, and it’s nothing short of sickening.

This encroachment of the courts against executive power is not a new concern, either.

During the first months of the Civil War, President Abraham Lincoln engaged in so-called extra-legal measures in order to save the country. He conscripted an army without Congressional approval, and he suspended habeas corpus (a legal right which requires that an arrested party to be brought before a judge to determine whether they should be detained or released) in Maryland. Virginia had already seceded from the Union, and if Maryland broke away, too, the federal seat of government in Washington, D.C. would have faced siege from all sides.

The United States Supreme Court formally intervened in 1861. Slave-owning Chief Justice (and Democrat) Roger Taney ruled against Lincoln’s suspension of habeas corpus in Ex Parte Merryman.The very partisan justice contended that the President had no authority to hold individuals indefinitely during times of war. However, Article 1, Section 9, Clause 2 of the United States Constitution clearly outlines that the habeas corpus writ can be suspended during such times of national crisis. In the end, Lincoln ignored the corrupt ruling which had interfered with his legal executive authority. President Trump should consider following Lincoln’s example and disregard the decision undercutting his order to suspend asylum rules for the greater good of the country.

Yet there’s more to Trump’s bold defiance to Chief Justice Robert’s brazen, unjustified defense of the so-called independent judiciary.

Indeed, we have Obama judges, and even judges before that, who have become comfy and arrogant in their power. They are issuing widespread rulings to impose their views on how the world should work, what the government should get away with, and not get away with, and how the United States Constitution can mean whatever they want it to. Enumerated powers have turned into expanded judicial tyranny, and it’s hurting our country.

This progressive impulse afflicts federal judges of all rankings and background, whether installed by Republicans or Democrats. Power tends to corrupt, and absolutely power in the hands of life-long judicial appoints has corrupted a once-august institution deemed to serve as a check and balance against government overreach.

John Roberts has no right to talk. When Obama publicly chastised the United States Supreme Court for the Citizens United decision, Roberts said nothing. He upheld Obamacare’s individual mandate, even though it clearly violated the interstate commerce clause of the United States Constitution. Roberts even joined with the bare majority to strike down the duly approved and enacted initiative process when the state of California clearly defined marriage as between one man and one woman.

Furthermore, contrary to Roberts’ partisan assertion, Trump did not attack the independence of the judiciary, but rather he attacked its clearly un-independent, incessantly partisan, anti-constitutional record—and he’s right to do so. Unlike the unelected, unaccountable elites in our country, Trump says what many of us are thinking, and without reserve or recrimination.

Indeed, we have an Obama-nized judiciary, one which seeks to fundamentally transform this country, ignoring the Constitution and upending the civil republicanism envisioned by the Framers. Fortunately, President Trump has a more constitutionally conservative Senator majority at his disposal for the next years. This majority ensures the rapid confirmation of constitutionalist jurists who will not only slow down but reverse the judicial tyranny tearing our country apart. While conservatives await the timely retirement of Ruth Bader Ginsburg, they should welcome John Roberts’ removal. Trump is making America Great Again, but that includes making the Supreme Court Constitutional Again, a reform which the some of members defiantly resist.

The Judicial branch was supposed to be the weakest branch. Instead, it has become the boss of all the others. In addition, the Federal District Courts keep making “nationwide” rulings that are outside their jurisdiction. That’s overstepping on a big scale.

Here's the relevant bit from Justice Thomas' concurrence in the Trump vs. Hawaii immigration case...

Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common.1 District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system — preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.

I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.

I'd look for Thomas to find a case this term to challenge this concept of "universal injunctions".

Despite being appointed by Bush, Roberts is an Obama judge.

It’s not nearly that bad, thank God. He hasn’t completely jumped the shark, at least not yet.
The salient fact about Roberts’ claim that there are no Obama judges or Trump judges is that - precisely in the manner that journalists claim that “all journalists are objective” - judges all claim that all judges are objective.
Since journalists are (contrary to the impression they like to project) mere private individuals without licenses from the government, their claims are bogus and it is in the public interest that people have more sense than to take them seriously. As Adam Smith put it,
The natural disposition is always to believe. It is acquired wisdom and experience only that teach incredulity, and they very seldom teach it enough. The wisest and most cautious of us all frequently gives credit to stories which he himself is afterwards both ashamed and astonished that he could possibly think of believing. Adam Smith, Theory of Moral Sentiments (1759)
We read comments of fellow FReepers precisely to gain from the “incredulity” they can bring to reports of journalists and columnists. “Incredulity” towards reports and opinions of fellow citizens - and of the executive and legislative branches of government - is in the public interest. But incredulity towards the judicial branch raises a deep problem of constitutional legitimacy, and it is that problem which Justice Roberts assays to alleviate with his “dishonest” tap dance.
The same behavior (as Roberts’ “tap dance”) was exhibited by SCOTUS in its Bush v. Gore decision. The majority in that decision knew full well that the Supreme Court of Florida was putting its thumb on the scale to cheat Bush, but instead of saying so outright it twisted logic into a pretzel in order to find for Bush without saying that another court was being run by cheaters. And ended its decision by enjoining lawyers in future cases from ever citing that pretzel.

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