As Trump tweets, legal community turns eyes to John Roberts

More than one travel ban judge threatened
More than one travel ban judge threatened


    More than one travel ban judge threatened


More than one travel ban judge threatened 02:16

Washington (CNN)President Donald Trump's persistent and unprecedented criticisms of judges and the judiciary at large have incited outrage on both sides of the legal community and prompted some to wonder if Chief Justice John Roberts should publicly come to the defense of his robed colleagues.

The chief justice also heads the Judicial Conference of the US -- the policy making body for the federal courts — and has defended his fellow jurists before. But Roberts has remained silent.
Some have called for Roberts to issue a statement. Richard L. Hasen of the University of California Irvine wrote recently, "There is someone else who should speak up for an independent judiciary, and that's the Chief Justice."
But that is not likely to happen. Roberts walks a careful line supporting the judiciary but keeping it far from the political dysfunction that has consumed the other two branches. When a political storm erupts, he strategically decides when to insert himself.
    Like most judges, Roberts treasures the idea of impartiality, and he also cares more than most about the legitimacy of the courts. As such, often his rule is to refrain from entering the immediate fray, but to circle back when the winds have died down.
    After a federal judge blocked Trump's executive order on immigration, Trump called him a "so-called judge" on Twitter. He later tweeted: "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!" Trump tweeted."
    Judge Neil Gorsuch, Trump's nominee to the Supreme Court, might be on his own as he goes through the ritual of "courtesy visits" with dozens of senators and they ask him whether he condemns Trump's comments. Gorsuch has found himself in the uncomfortable position of responding to Trump's attacks behind closed doors.
    Nebraska Republican Sen. Ben Sasse described a meeting with Gorsuch.
    "Here's some of what the Judge told me when I asked him what he thought about those comments," Sasse said according to a statement from his office. "He got a little emotional and he said that any attack, or any criticism, of his 'brothers and sisters of the robe" is an attack or criticism on everybody wearing the robe as a job.
    Gorsuch, like Roberts, like any other judge, will have to skillfully navigate around Trump's comments. He can't comment about a case that could potentially come before him.

    Roberts' rules of activism

    Over the past few years, Roberts has steered clear from an immediate public reaction, only to insert himself later.
    Last month, for instance, he dedicated the bulk of his year end report on the state of the judiciary to praise district court judges.
    "District judges make a difference every day, and leave a lasting legacy, by making our society more fair and just," he said. Some believe that the report was in response to attacks during the campaign that Trump directed at Judge Gonazalo Curiel for a lawsuit that took place during the campaign. Trump said Curiel was biased against him because the judge was of "Mexican heritage" and Trump was campaigning to build a wall along the US-Mexico border.
    In 2011 as the court was gearing up to hear a challenge to the Affordable Care Act, critics on both sides of the political spectrum argued
    that Justice Clarence Thomas and Elena Kagan should recuse themselves from the health care case. Thomas' wife had ties to a group opposing the law and Kagan, critics said, may have played a role in the earlier stages of the litigation when she served as Solicitor General.
    Although he never mentioned either Thomas or Kagan, Roberts dedicated his 2011 year end report to the issue of judicial recusal, noting that it is largely up to an individual justice to make the call if they should step away.
    "I have complete confidence in the capability of my colleagues to determine when recusal is warranted," Roberts wrote. "They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process," he said.
    And last February, Roberts launched into a critique of the confirmation process during a talk at New England School of Law in Boston. There were four relatively new members of the Court who had each gone through fairly recent confirmation hearings and the new Court seemed to be settling in. Perhaps Roberts thought -- with no confirmation battle on the horizon-- it was a good time to highlight a problem that he had observed.
    "When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it would be viewed in those terms," the Chief said. "And that's just not how -- we don't work as Democrats or Republicans. I think it's a very unfortunate perception the public might get from the confirmation process," he said. Ten days later, Justice Antonin Scalia suddenly died.
    In public appearances following Scalia's death, Roberts refrained from repeating his comments.
    That's all he's likely to say on the matter for now.
    The chief justice declined a request to comment to CNN.