The Chief Justice and the President — Roberts Tells the Sixth Circuit Judicial Conference the Public Now Sees the Court as “Political Actors,” the President Tells the Press Pool That Gorsuch and Barrett Are “An Embarrassment to Their Families,” and the Two Most Important Living Custodians of the American Republic Are Now Arguing With Each Other in Public
The Chief Justice of the United States, in a forty-minute address to the Sixth Circuit Judicial Conference at Cincinnati on Thursday evening, took the unusual step of lamenting, for the second time in eleven months, the public perception of the Court he has led for two decades as an institution “driven primarily by political outcomes rather than the law.” The President of the United States, in a White House gaggle on Friday morning before the Rose Garden, took the unusual step of naming, by name, two of the three Justices he appointed in his first term — Neil Gorsuch and Amy Coney Barrett — calling their position in a recent unsigned dissent “an embarrassment to their families.” The two statements, on the testimony of one constitutional law professor at Yale, are the most public single argument between a sitting Chief Justice and a sitting President over the political character of the Supreme Court since the New Deal.
The Sixth Circuit Address
The Chief Justice’s Cincinnati address ran forty minutes, on the C-SPAN clock, with the lectern at the Hilton Netherland Plaza facing fewer than three hundred federal judges and senior bar members. He used the phrase “political actors” on three occasions. He used the phrase “the work of judging” on seven. He named no sitting Justice. He named no Justice he has appointed and no opinion he has joined. He spent eleven minutes on the Federalist position that the judiciary is “the least dangerous branch” and a further nine on the consequence of a public that no longer believes the proposition. The closing line, on the prepared text the Office of the Chief Justice released to the press at half past nine, was that the Court “is, and remains, the body the Constitution made it — not the body our critics imagine and not the body our friends sometimes ask us to be.” The line, on the testimony of one former Roberts clerk, was the most carefully drafted single sentence the Chief Justice has issued in public since the Dobbs term.
The President’s Reply
The President’s reply ran three minutes, on the Press Office transcript, in the colonnade outside the Oval Office at twenty-three minutes past ten Eastern time, before the Rose Garden statement. He named the unsigned dissent in the case the Solicitor General argued at the Court on Wednesday afternoon. He named, in order, Mr Gorsuch and Mrs Barrett. He used the phrase “an embarrassment to their families” once. He named, on no occasion, the Chief Justice. He named, on one occasion, Brett Kavanaugh, who joined the majority. He named, on one occasion, Samuel Alito and Clarence Thomas, whom he characterised as “the two who get it.” He walked toward the Rose Garden lectern at twenty-six minutes past ten. The Press Secretary, on the briefing room note circulated at half past eleven, did not return to the question.
The Eleven-Month Pattern
The Roberts Cincinnati address is the second public lament the Chief Justice has issued in eleven months on the political reputation of the institution he has led since 2005. The first, in his year-end report on the federal judiciary, ran shorter and harder. The second, on the testimony of two former Roberts clerks, was drafted in the first week of April, after the Solicitor General’s emergency stay request on the Tennessee redistricting calendar, and was held for the Sixth Circuit calendar that runs from Wednesday through Saturday this week. The pattern, on the same testimony, is the pattern of a Chief Justice who has concluded that the institutional risk to the Court is now larger than the institutional risk of speaking. That, on the testimony of one Yale constitutional law professor, is a position the Roberts Court has not held in living memory.
The Sources of the Argument
The Chief Justice and the President are now arguing about three working questions. The first is whether the unsigned dissent in the Wednesday case — the Tennessee mid-decade redistricting case the Court took on the Solicitor General’s emergency stay request — is a defection by the two Trump-appointed Justices or a defensible reading of Allen versus Milligan. The second is whether the four-state Southern redistricting calendar that the Tennessee map opens this afternoon will be rejected by the Roberts Court when it reaches the merits docket in July, or held by the Roberts Court on the same posture as Milligan. The third, and the most consequential, is whether the Court is now in a constitutional argument with the Executive Branch over the political composition of the federal judiciary. That argument, on the testimony of one Yale professor, is the argument the Court has spent its eight decades since Brown carefully avoiding having in public.
The Senate Position
The Senate Republican Conference, on a written statement issued by the Majority Leader at 13:18 Eastern time, did not name the Chief Justice and did not name the President. The statement said the Senate “continues to support the constitutional architecture of an independent judiciary, the separation of powers, and the work of confirmed judges.” The Senate Democratic Caucus, on a written statement issued by the Minority Leader at 13:42, named the President twice and the Chief Justice on no occasion. The statement called the President’s gaggle remarks “an attempt to intimidate sitting Justices into political fidelity” and committed the Caucus to introducing a non-binding floor resolution next week affirming the independence of the judiciary. The Senate Judiciary Chairman, on a written statement at 14:11, said the resolution “will not advance.”
The Court’s Public
The most consequential audience for the Roberts Cincinnati address is not the federal judges in the room and not the press in the gallery. It is the public the Chief Justice named in the third paragraph of the prepared text: “the country we serve, which has, for the first time in the Court’s modern era, fallen below half in its working confidence in our work.” That figure — the Court’s public confidence number now sitting at forty-one per cent on the Gallup three-month moving average — is, on the testimony of one historian of the Roberts Court, the lowest the institution has registered since modern polling began in the late 1960s. The address, on the same historian’s testimony, is the Chief Justice’s working response to that figure.
What Friday Decides
What Friday has decided is that the Chief Justice and the President are now in a public argument about whether the Court is a court. What Friday has not decided is whether the Roberts Court takes the Tennessee redistricting case in the posture the Solicitor General requested, whether the four-state Southern calendar holds, and whether the Senate Democratic Caucus’s non-binding resolution gets a floor vote. The single fact decided this morning, on the evidence of the Cincinnati address, the colonnade gaggle and the four pieces of paper that travelled around the Senate this afternoon, is that the institution the Constitution made the least dangerous branch is now the institution the President of the United States is willing to argue with by name on the way to the Rose Garden. That fact, on the testimony of every constitutional law professor reached for comment, is the news.