Chief Justice John Roberts should try playing the lottery. In his end-of-the-year report on the federal judiciary in December, he warned of threats to judicial independence and listed “defiance of court orders” among them. Less than three months later, that once-unthinkable threat has already become a reality.
Last weekend, the Trump administration flew groups of Venezuelan nationals—who it claimed had ties with an organized crime group—to a prison in El Salvador without normal deportation proceedings, where they have been ordered to work without pay. After a hasty filing by the ACLU and a hearing, Judge James Boasberg ordered the administration on Saturday to stop further flights and to turn around the ones in the air. The White House refused and has submitted a series of increasingly passive-aggressive court filings to justify its defiance.
The incident has led to calls for impeachment—not of Trump for defying a federal court order but of Boasberg for having the temerity to give orders to the Trump administration. Trump himself declared that Boasberg should be impeached, and some Republican lawmakers on Capitol Hill have taken steps to make that happen. He is one of multiple federal judges that MAGA-allied lawmakers have targeted in recent weeks.
Some reporters made a standard request for comment from the Supreme Court. In an unusual break with the norm, Roberts actually responded. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” he said in a statement. “The normal appellate review process exists for that purpose.”
How best can those two sentences be read? One way would be to read them as a rebuke of Trump himself and a defense of the federal courts, delivered from the federal judiciary’s de facto leader. This is the easiest conclusion for observers to reach because Roberts has actually done it before.
In 2018, Trump raged against lower court judges who issued rulings and injunctions against his policies. One of his targets was a federal judge in California who had blocked one of his asylum-related policies on the southern border. After the Associated Press requested comment, Roberts made the extraordinary move of responding to the president’s criticisms. He took particular issue with Trump’s description of the judges as “Obama judges.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement to the AP at the time. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”
Trump disagreed in a series of Twitter posts that, by the president’s standards, reads almost like a polite rebuttal. “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,” he wrote. “It would be great if the [Ninth] Circuit [Court of Appeals] was indeed an ‘independent judiciary,’ but if it is, why are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking. We need protection and security—these rulings are making our country unsafe! Very dangerous and unwise!”
The exchange, such as it was, only underscored the problem. Roberts almost certainly meant an “independent judiciary” in the traditional sense that it stands apart from the other two branches of government, including the presidents who appointed the various judges. Trump apparently thought that Roberts meant “independent” in a partisan sense, meaning that it is neither Democratic nor Republican, which he tried to refute by pointing to the “opposing view cases” filed there.
In reality, Trump does not believe in an independent judiciary that fairly and neutrally adjudicates the legal cases and controversies that come before it. His rubric for interpreting judicial decisions is much simpler than that. Judges who rule against him are biased and corrupt. Judges who rule in his favor are paragons of the American legal profession. Look no further than how the president described Judge Aileen Cannon, the controversial Trump appointee who hamstrung his classified documents prosecution with a series of flawed rulings last year.
“They were saying she was slow, she wasn’t smart, she was totally biased, she loved Trump,” Trump told the assembled personnel in remarks at the Justice Department headquarters last week. “I didn’t know her other than I saw her the couple of days that I was in court, and I thought her decorum was amazing. Actually, she was brilliant, she moved quickly. She was the absolute model of what a judge should be, and she was strong and tough.”
Roberts is all too familiar with Trump’s personalized approach to the judiciary. Another way to read the chief justice’s statement would be as a move to reassert his own independence after a recent public blow to it. It has only been about a fortnight since cameras and microphones at Trump’s speech on Capitol Hill captured the president’s brief exchange with Roberts as Trump left the House floor. “Thank you again, I won’t forget it,” Trump told him as they shook hands. He then appreciatively slapped Roberts on the back as he walked away.
The president’s gratitude almost certainly came from the twin decisions that Roberts engineered last year. First, the chief justice voted with the majority in Trump v. Anderson to gut the Fourteenth Amendment’s disqualification clause so that Trump could run for a second term despite his leading role in the January 6 insurrection. A few months later, in Trump v. United States, Roberts wrote a majority opinion that granted Trump’s anti-constitutional demand for “presidential immunity,” halting most of the criminal prosecutions against him.
It does not really matter for the purposes of this analysis why Roberts orchestrated those rulings. Maybe he’s a huge fan of Trump and wanted him to win the 2024 election. Maybe he just thought Democrats were being mean and unfair to the former president. Maybe he genuinely believes that the Framers at the Constitutional Convention in 1787 thought not only that presidents could commit crimes whenever they want but also that it was so obvious that they didn’t need to bother with actually writing it down anywhere.
Trump, thinking once again in personalized terms, apparently saw the rulings as a very nice thing that Roberts did for him. He responded accordingly with his gratitude. Whatever Roberts’s actual state of mind was when writing those rulings, however, this sort of grubby backslapping is the last thing that he would want to actually convey to the public. As I’ve noted before, the chief justice is extremely scrupulous about protecting his own public image and the public image of the Supreme Court itself.
There is a third way to read Roberts’s statement that is slightly more unsettling. Unlike his 2018 statement on “Obama judges,” Roberts made no appeal to higher values or constitutional principles. His approach here was purely mechanical. The best way to address the perceived problem from Trumpworld was not impeachment, he argued, but by appealing through the courts.
The Supreme Court has only ruled on one Trump-related matter since the inauguration, when it voted 5–4 to force the State Department to honor $2 billion in payments for USAID contractors for work already done. Though the White House technically lost that case, the bigger takeaway is that there were four justices who bought the administration’s narrative and legal reasoning hook, line, and sinker.
Indeed, there is good reason to believe that the Supreme Court may eventually side with the Trump administration on some of its actions. Roberts and his conservative colleagues have worked hard over the last few years to weaken key pillars of the “administrative state,” the term sometimes used to describe federal regulatory agencies. Their rulings on the president’s ability to fire heads of independent agencies, for example, formed the legal nucleus for many of Trump’s recent purges.
Impeachment is also not really a serious threat to any federal judge. Even if there are enough votes to pass articles of impeachment against one in the House of Representatives, there are only 53 Republicans in the Senate. An additional 14 Democrats’ votes would be needed to remove a targeted judge from office, and it is doubtful that many would be up for grabs. Trumpworld figures like Elon Musk can fulminate about the dangers of a “judicial coup” and the supposed “will of the people” all they want: The math just isn’t there.
It would go too far to say that Roberts is actively signaling to Trump that the high court will overturn or curb some of the lower court orders that are vexing him. The chief justice is not so blunt when he acts in this capacity. But it would also be a mistake to read Roberts’s statement as either a rebuke of Trump’s actions or a defense of the lower courts’ rulings. He is merely suggesting that a more “appropriate response” would be to run things by Roberts and his co-workers first. I doubt Trump would be disappointed with the result.
