The Corner

Law & the Courts

The Chief Justice’s Defense of the Federal Judiciary

In response to President Trump’s criticism of a decision by an “Obama judge,” Chief Justice John Roberts said, “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.”

The argument for this type of statement is that it undermines respect for the courts, and for the rule of law, when people view courts as partisan instruments. But there’s a problem with Roberts’s strategy: What he’s saying is pretty obviously untrue. The decisions of judges appointed by Clinton and Obama generally differ, in predictable ways, from the decisions of judges appointed by Bush and Trump. In an ideal world, the difference would be smaller than it is and perhaps would not even exist. But I do not think that we will move toward that ideal by rebuking those who notice we are not already there.