President Donald Trump on Tuesday called the federal judge adjudicating a challenge to recent deportation orders a “Radical Left Lunatic of a Judge, a troublemaker and agitator” and called for his impeachment. In response to this and other, similar attacks on judges, Supreme Court Chief Justice John Roberts took the extraordinary step of issuing a public statement condemning such attacks.
As the chief justice explained in his 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.”
This could be a signal that Roberts might not be willing to rule with the Trump administration when it comes to its many forays into seemingly unconstitutional territory. And not a moment too soon.
Like most chief justices who have preceded him, Roberts tends to let his judicial opinions deliver his messages. This time, as the Trump administration’s attacks on the courts are growing, we face the likelihood of seeing federal officials defy court orders in the very near future (if they haven’t done so already). That’s why the chief justice’s statements couldn’t come at a better (or more perilous) time for the rule of law, which seems constantly under threat.
Federal judges, like many other federal officials, are subject to removal from their otherwise lifetime appointments through impeachment. Removal of federal judges through impeachment is very rare, however. It has happened only five times over the last 100 years and typically for things like outright corruption. The purpose behind the lifetime appointment of federal judges and the high bar of impeachment is, as Alexander Hamilton explained, to insulate judges from the political winds and outside pressure.
Indeed, Hamilton argued in Federalist 78 that not just independence, but also “complete independence of the courts” was “peculiarly essential in a limited Constitution,” one in which other branches were constrained by the Constitution and the courts had to help enforce those constraints.
The recent attacks on judges fly in the face of this “complete independence.”
Since the start of Trump’s second administration, calls for impeachment have emanated from members of Congress, Elon Musk and now from the president himself. What is more, we seem to be headed for a significant constitutional crisis over whether the Trump administration is willing to defy court orders.
This could be a signal that Roberts might not be willing to rule with the Trump administration when it comes to its many forays into seemingly unconstitutional territory.
Almost at the same time that the chief justice was issuing his statement, in a courthouse down the street, lawyers for the federal government were trying to defend the actions of the administration over the weekend, when it seemed they might have ignored a direct order of another judge, this one from James Boasberg, the chief judge of U.S. District Court for the District of Columbia. This is the same judge Trump called a “radical left lunatic,” who just happened to have been confirmed by the Senate in a 96-0 vote in 2011.
In that case, Judge Boasberg had directed the government to stop its deportation of hundreds of migrants without due process of law, including directing the government to turn any planes around that might contain such migrants and might have already taken off.
Despite some defiant statements over the last few days that the court had no power to issue such orders or that the government didn’t have to obey them, lawyers were in court Tuesday afternoon trying to explain that the actions of the federal government weren’t actually in contravention of the court’s order. Their position in court has been very different from the bold statements from several Trump officials, made to the media, that the administration could simply flout the court’s directives. While it is obviously critical for the chief justice to speak up against unconscionable attacks on judges because they might disagree with the Trump administration over the law — which is all that the judges who have been attacked so far have done — the Roberts defense could signal that he may serve as a bulwark on the court against the more extreme positions of the Trump administration more generally and the arguments raised by its lawyers. When an emergency application came before the Supreme Court over cuts to the U.S. Agency for International Development, at first Roberts issued an administrative stay of a lower court order to give the entire court a chance to consider the Trump administration’s request to enable it to continue to devastate this agency. That gave some court watchers pause, and many expressed concerns that the Trump administration would be unleashed to take action against not just USAID but also other government agencies. Several days later, though, the entire court ruled, with Roberts in the majority (with Justice Amy Coney Barrett and the three liberal justices), to allow the lower court’s order protecting USAID to take effect once again. During his confirmation hearing in 2005, Roberts famously said his job was to “call balls and strikes,” like an umpire in a baseball game, and not to set the strike zone. Perhaps he realizes now that he has to do more than sit by impassively passing judgment, however. Perhaps he is starting to understand that without a sustained, vocal and affirmative defense of the judiciary, he might find that there might be little left to adjudicate in the event the branch whose job it is to “say what the law is,” as former Chief Justice John Marshall once said, finds itself hobbled and silenced by such overt threats to the rule of law.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
