John Roberts can’t tame Donald Trump

But judicial integrity may bode ill for president

President Donald Trump’s muddled tirade against the 9th Circuit Court of Appeals, followed by his remarkable war of words with Chief Justice John Roberts, was unprecedented in its sheer cheek. Yet the likelihood is that his histrionics will cost him nothing.

Trump’s attacks were triggered by a court decision that set aside his executive order blocking asylum requests from certain immigrants, on the grounds that U.S. law specifically defines them as eligible. The setback sent Trump into a general rant about “Obama judges” that shortly evolved into a series of rants about the 9th Circuit.

Roberts scolded that America doesn’t have “Obama judges or Trump judges,” and that we should all be thankful for the “independent judiciary.” In the decorous domain of the Supreme Court, this was tantamount to a screaming reproof. Living as Roberts does in a world where a raised eyebrow causes litigants to hop to, he perhaps thought it would chasten Trump.

Not a chance with the 45th president. Trump responded as he would to any antagonist, in a tweet that began, “Sorry Chief Justice John Roberts.” He called the 9th Circuit a “total disaster (that) is overturned more than any Circuit in the country,” and amplified the diatribe as the week wore on.

Trump being Trump, the rants were riddled with errors. Given his reference to reversal rates and other attacks, he appeared to believe the adverse decision came from the 9th Circuit Court of Appeals. But what set him off was from Jon Tigar, who does not even sit on that court. He’s a federal district court judge in San Francisco (and an excellent and fair-minded judge whom I have known since he was a stellar law student).

Second, Trump was misleading at best in his characterization of the 9th Circuit. The appeals court’s rate of reversal in the Supreme Court is lower than that of several other circuits. And the Supreme Court hears a minuscule percentage — well under 1 percent — of the 9th Circuit’s cases, scarcely enough to characterize the court’s quality.

Third, all kinds of judges have ruled against Trump, among them Republican appointees who disagreed with him in cases involving immigration, press freedom and the legitimacy of special counsel Robert Mueller. Those last two decisions came from judges Trump named himself.

Many presidents have taken issue with judicial decisions on the merits, including Abraham Lincoln and Barack Obama. Trump’s harangue was different in its scorn and sheer demagoguery. He made no effort to challenge the court’s legal reasoning. His argument was rather that its application of the law was making the country less safe.

But recent history suggests his attacks will not backfire. His sole political concern is for his base, so the contempt of the majority is a political plus stoking the same fires that got him elected. Sam with his nose-thumbing at legal and cultural elites.

Moreover, Trump needn’t worry that Roberts will continue to engage with him. Roberts would never carry out a personal battle with the president; it would be bad for public confidence in the court and demeaning personally.

But hasn’t Trump made it more likely that the court will rule against him if some landmark case involving his presidency and even his liberty comes before it? In a word, no. Roberts has too much integrity to permit Trump’s imbecility to affect his legal judgment.

On the other hand, that same integrity bodes ill for Trump if his fortunes are one day put in the court’s hands — for example in a legal battle over a subpoena for the president’s testimony. The court is likely to bring Trump to heel (and, I would predict, in an opinion authored by Roberts and joined by Justice Brett Kavanaugh). That is because Trump’s general claim to be above the law is constitutionally offensive and untenable. Should the court one day make that clear, its mandate will prove the ultimate test of Trump’s contempt for the rule of law.