On Tuesday morning, the Supreme Court press office issued a rare public statement from Chief Justice John Roberts himself. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said. “The normal appellate review process exists for that purpose.”
Roberts did not specify what prompted him to issue this statement, because heaven forbid a life-tenured Supreme Court justice summon the courage to address existential threats to the legal system with anything more than feckless banalities. But it comes the day after Judge James Boasberg, a federal district court judge in Washington, D.C., temporarily blocked the White House’s efforts to send hundreds of Venezuelan people to El Salvador without due process, and several hours after President Donald Trump responded by hopping on Truth Social and losing his mind, decrying Boasberg as a “Radical Left Lunatic of a Judge” and “troublemaker and agitator” who “should be IMPEACHED!!” A freshman Republican congressman quickly obliged, drafting articles of impeachment that accuse Boasberg of fomenting a “constitutional crisis,” a term that Republicans define to mean any judicial act that allows the party’s leader to do less than 100 percent of what he wants.
Boasberg is the first federal judge this term to earn his very own randomly-capitalized Trump post, but conservative activists have been beating this fascist drum for weeks, publicly demanding the impeachment of judges (and especially judges of color_ who have ruled against the administration’s cheerful lawlessness. As usual, I am not going to poison your brain with the details, but searching X for Boasberg’s name right now yields a blizzard of conspiracy theories about his true motivations for trying to stop the government from trying to invoke a 227-year-old wartime statute to condemn legally innocent people to hard labor in maximum-security prisons abroad. The movement has shifted so far to the right that Ed Whelan, who as recently as six years ago was among the more unhinged characters in the Federalist Society extended universe, is getting shouted down on X for having the temerity to suggest that conservatives engage in a “serious analysis of legal issues” instead of calling for Boasberg’s imprisonment.
(Photo by Win McNamee/Getty Images)
Demented though Trump’s posts may be, there is a very good reason he feels comfortable accusing judges doing their jobs of committing high crimes and misdemeanors: For the past eight years, the Court’s Republican justices have made clear to Trump that more often than not, the law does not constrain him in any meaningful sense. The First Amendment’s guarantee of the freedom of religion did not actually prevent him from instituting a Muslim ban. The Fourteenth Amendment’s ban on insurrectionists holding elected office did not actually prohibit him from running for president again. And, of course, sacred separation-of-powers principles mean that presidents cannot be prosecuted for crimes, as long as they have the sense to commit them from the safety of the Oval Office. To the extent that Roberts ever possessed the political capital to rebuke Trump, he forfeited it a long time ago; he might as well have wrapped his statement with the picture of Tim Robinson wearing the hot dog suit.
None of these cases explicitly state that Trump is forevermore beyond the law’s theoretical reach. But precise doctrinal holdings are and have always been less important than the total lack of real-world consequences the Court has been willing to impose on him for stretching the law to its limits. In Trump’s mind, Boasberg’s order must be wrong because, as Trump understands the law, the order is inherently insubordinate: If the Constitution really doesn’t authorize a president to ignore the Due Process Clause and implement xenophobia as public policy, wouldn’t the Supreme Court have said so by now?
As he demonstrated during the Biden administration, Roberts knows how to check a president when he feels like it. But he has little interest in doing so these days, because the current president’s policy agenda is one with which Roberts largely agrees. As his statement’s emphasis on the primacy of the “normal appellate review process” suggests, when their preferences diverge, it is mostly a difference of opinion about strategy: Roberts hopes to preserve the illusion of judicial independence so that he can backstop the GOP’s agenda with the Supreme Court’s institutional legitimacy. What he doesn’t understand is that Trump understands the federal judiciary to be as subject to his absolute power as anything else, and thus does not see the point of pretending to care about its “independence” in the first place.
Throughout his tenure, Roberts has curated his public image as a staunch institutionalist committed to keeping the Court out of the icky business of partisan politics. This has never been right, but also, it has never been more obviously wrong than right now, when his only response to a president whipping up a frenzied mob against federal judges is a mewling plea for calm that no one in power takes seriously. If you asked Roberts whether Trump is above the law, he would probably say, no, of course not. If you asked Trump whether he is above the law, he would say, of course I am. John Roberts made sure of it.
