Given Trump’s irresponsible criticisms of individual judges, Roberts can be excused for taking this controversial step. However, his response would have had greater credibility if he showed the same principle in policing his own court. As I have repeatedly argued in columns, justices increasingly are making highly inappropriate, ideological statements in public without nary a growl from Roberts.
For example, in 2010, Justice Samuel Alito was shown at a State of the Union address, shaking his head and mouthing “Not true,” in response to President Barack Obama’s criticism of the Citizens United ruling on corporate campaign finance limits. Obama was out of line in his portrayal of the ruling — but he’s a politician. Some of us immediately denounced Alito’s conduct in breaking a longstanding tradition of justices remaining silent and neutral at such addresses. It was a serious violation of both protocol and principle. I wrote at the time that it was incumbent on Roberts, as head of the Supreme Court, to repudiate Alito’s conduct.
Instead, Roberts gave a public speech with a not-so-veiled criticism of Obama allowing the address to “denigrate to a political pep rally.” It was an early example of how Roberts’ own version of the “Rules of Order” seem to excuse the conduct of his colleagues while excoriating the conduct of others.