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Nicolais: Why Justice Roberts responded to President Trump

Silence from the judiciary threatens to erode confidence in the institution

While Democrats count down the days until they officially take control of the U.S. House of Representatives more eagerly than children awaiting Christmas, President Trump turned his 280-character attention toward the third branch of government.

The aftermath underscores what a woefully vulnerable and discordant position the judiciary finds itself in, compared with its sister branches.

After a federal court ruled against the Trump administration’s asylum policy, the president made on offhand assessment that the decision came from “an Obama judge.”

Mario Nicolais

Hardly the type of vitriolic attack we’ve become accustomed to from Trump, the remark didn’t even warrant a tweet in the president’s opinion. At least it didn’t until Supreme Court Chief Justice John Roberts publicly rebuked Trump for his comments.

That spurred Trump’s thumbs into a Thanksgiving response, albeit in a far more civil tone than other presidential critics could expect.

More than the merits or the message, that Roberts felt the need to respond in a public format highlighted how divergent the judiciary is from the other levers of government in modern America. The pressures created by that dynamic may go a long way to understanding why Roberts chose to speak out.

As radio, television, the internet, and social media have brought political warfare over the legislative and executive branches into our homes, the judiciary remains a shrouded mystery.

Bombarded by phone calls and commercials during elections, cable news and blogposts carry the drumbeat between parties fighting over policy positions the rest of the time. What’s more, executive and legislative leaders become brands in and among themselves: Trump, Obama, Pelosi, McConnell.

In contrast, the black robes donned by judges may as well be an invisibility cloak. If a court decision even makes the news, it’s usually cast as a rebuff or affirmation to members of another branch.

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Furthermore, whole news stories can be reported on major opinions without mentioning a judge by name. Usually it is deemed sufficient to reference “the judge” or “the court.” As if to prove the point, most media outlets reported on the decision that spurred Trump’s comments in a manner similar to this headline appearing in the Washington Post: “Federal judge blocks Trump’s asylum ban.”

You have to dig pretty deep to find the judge’s name, and it is almost impossible to find substantive analysis of his legal reasoning.

Of course, anonymity can be viewed as a virtue for courts. Charged to serve as independent and neutral arbiters of the legal system, judges typically view themselves as subservient to the system.

Certainly, that seems to be the point Roberts wanted to make. His own statement proclaimed that the efforts of individual judges must be viewed as a means to creating an “independent judiciary.”

But Roberts also seems to understand that the judiciary is uniquely unequipped for a society used to obtaining information through the swipe of a finger across a smartphone screen. Without a spokesman, the judiciary creates a vacuum for politicians like Trump to fill. Without anyone to respond, the judiciary has become an easy target over the past few decades.

Unfortunately, unanswered accusations erode the very pillars of independence the court’s stoic silence is intended to convey. Eventually, Roberts understood, someone had to say something.

As the chief for the country’s highest ranking court, Roberts found himself in the unenviable position to do what most judges actively avoid. Roberts needed to speak out.

And with a few words, he did. While many reports turned his comments into an affront to Trump, it’s clear he only hoped to shield the judiciary from any more atrophy of good will among the people. With apologies to the Notorious RBG (Supreme Court Justice and Netflix biopic subject Ruth Bader Ginsburg), only Roberts holds the ability to speak out for the judicial system as a whole.

I doubt Roberts will make similar public pronouncements often. I’m certain he won’t take to Twitter like former FBI Director James Comey. I suspect he would like to finish the rest of the year without talking to a reporter again. But if the past is any predictor of the future, he may not be able to avoid it.


Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq


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