The Administration Can’t Even Take a Hint from the Chief Justice

Will No One Rid Us of This Turbulent Musk?

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I’ve never before started one of these dispatches by plugging my own credentials, so I hope that you’ll forgive me for coming out of the box by explaining that I clerked for two Supreme Court justices; I have litigated cases in the High Court; and for many years I have taught advanced law school seminars on the Court. I know more than a little about the Court as an institution. And Chief Justice John Roberts’s statement rebuking Trump for his vicious and ignorant attack on D.C. Chief Judge Jeb Boasberg—including calling for his impeachment—was as rare as a D.C. snowstorm in June.

Indeed, I am not aware of a single other instance in which any Chief Justice made a public statement unrelated to official duties, whether on the Court or in Congress. And that's not even the half of it. Roberts’s statement was issued within hours of Trump's demagogic, asinine call for the impeachment of D.C. Chief Judge Jeb Boasberg. Trump added, for good measure, his assessment that Judge Boasberg is a "radical left lunatic," a "troublemaker and agitator," and “a crooked judge,” before calling for him to be "IMPEACHED!!!”

It was even more extraordinary that Roberts waded into what is essentially the political fray, scolding Trump for his irresponsible rhetoric. Roberts’s response seemed contained, but I guarantee you that anyone who understands the world of the Supreme Court heard it as deafening.

Roberts wrote: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that reason.”

Roberts’s direction on the normal appellate review process has a broader connection to the case. The Trump Administration—including the entire political leadership of the Department of Justice—is jumping up and down and spitting venom at the idea that a district court judge can bind the president. They seem to think the president should be able to leapfrog immediately to the Supreme Court or at least the Court of Appeals.

But another name for the system that has Trump and his cronies so bent out of shape is the rule of law in the federal system. Cases originate at the trial court level. They then proceed to an appeal as of right and, after that, a possible final appeal if the Supreme Court allows. Apart from very rare instances provided by Congress, every dispute works this way. Every landmark Supreme Court decision originated with a determination at the trial court level. Their outrage betrays extreme ignorance—not to mention extreme arrogance.

A further noteworthy point about Roberts’s statement: I think there's no way he would have made it without consulting with the other justices and receiving at least a rough consensus to go ahead with the extraordinary public statement. That means it's likely that a majority of the Supreme Court was appalled by Trump’s know-nothing savagery—including real concern for the physical safety of federal judges. Boasberg is the fourth judge against whom House Republicans have filed articles of impeachment in the last two months, with no allegations of misconduct other than ruling against the administration.

At this point, any boob, however legally ignorant, would know to immediately stand down. Given Roberts’s station, the severity of his rebuke (properly understood), and the administration’s great need for his goodwill, doing anything else would be sheer lunacy. But that's exactly what Trump and the mini-me who runs the government did.

Trump’s response was more bizarre than bellicose. He dismissed the scolding by saying Roberts “didn’t mention my name in his statement.” That’s like a third-grade schoolchild getting beaten up and trying to save face by claiming the other guy didn’t lay a glove on him.

It can’t thrill Roberts and the Court—who obviously felt strongly that some extraordinary gesture was warranted—to hear that Trump assumes they weren't even addressing him.

But Musk’s response was far worse. Yesterday, he made the maximum allowable donations to the seven Republican members of Congress who have filed or vocally supported the impeachment of the judges. The intent is unmistakable. He is showing contempt for Roberts and the Court, and doing it in his signature crass way—by throwing his money around. He is telling them: Yes, you may have earned the reproach of the highest court in the land, but never fear—you’re doing the right thing, and others should follow suit.

This charade with Musk has gone on far too long. If he wants to be a rich benefactor of the administration—a new Koch brother dispensing his largesse on the worst of the worst Republicans—let him. But he has no business, and no expertise, to simultaneously run the government and make radical, slap-happy cuts whose human costs he doesn’t begin to understand. And all this, of course, while the administration is claiming in court that he is some kind of amorphous senior adviser and that DOGE is actually run by a person nobody has heard of—one Amy Gleason—whom we just learned is officially listed on the government rolls as an HHS employee.

In the meantime, we should draw a glimmer of hope from this week and the extraordinary pushback by the Chief Justice. I've suggested in the past that there are two different John Robertses, including one whose true stripes emerge when there's an issue of keen interest to the Republican Party. But the other John Roberts is the statesman-justice who understands deeply the Court’s indispensable role as the ultimate guarantor of the separation of powers and the rule of law.

That was the Roberts who stepped forward forcefully this week—the one the country desperately needs to count on when the chips are down, as they likely soon will be.

Talk to you later.