On Friday, Senate Minority Leader hilariously and unwittingly confirmed that in his opinion, his arch-nemesis, President Trump, was right and Chief Justice John Roberts was wrong when Trump stated that judges on the Supreme Court held partisan views that colored their judgment and Roberts vehemently disagreed. Schumer issued a tweet in which he admitted that Roberts himself was partisan, writing, “I don’t agree very often with Chief Justice Roberts, especially his partisan decisions which seem highly political on Citizens United, Janus, and Shelby. But I am thankful today that he—almost alone among Republicans—stood up to President Trump and for an independent judiciary.”
The contretemps between Trump and Roberts started on Tuesday when Trump slammed Judge Jon Tigar of U.S. District Court in Northern California, who ruled against Trump’s policy that would require migrants to apply for asylum at legal border crossings. Trump stated, “This was an Obama judge, and I’ll tell you what, it’s not going to happen like this anymore,”
Roberts took the unusual step of criticizing a president publicly, stating, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Trump fired back on Twitter, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an ‘independent judiciary,’ but if it is why there are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking. We need protection and security — these rulings are making our country unsafe! Very dangerous and unwise!”
According to SupremeCourt.gov, as quoted by fivethirtyeight.com, since Justice Neil Gorsuch joined the Court in April 2017, the four left-leaning judges on the Supreme Court are far more consistent about voting together as a bloc than the conservatives on the court; Elena Kagan votes with Stephen Breyer, Sonia Sotomayor and Ruth Bader Ginsburg an average of 89% of the time; Breyer votes with his cohorts an average of 91% of the time; Ginsburg also votes with her pals an average of 91% of the time, and Sotomayor joins them 90.3% of the time.
By contrast, among the four right-leaning judges, Neil Gorsuch, Samuel Altio, Clarence Thomas, and John Roberts, Gorsuch sided with them an average of 82.7% of the time; Thomas 86.3% of the time; Alito 85.7% of the time, and Roberts 80.7% of the time.
In August, as the hearings for Justice Brett Kavanaugh approached, Michael Schwartz noted the importance of the nomination in The Weekly Standard because of the partisanship displayed by the Court:
But why is that single vote so important? It is because of a huge—and relatively recent—change in the Court’s functioning: the justices’ sharply increased willingness to decide contested issues of constitutional law by a narrow 5-4 majority. This practice, nowadays considered normal and acceptable, was almost entirely unknown from the Court’s earliest days until well into the 20th century. For most of its history the Court operated under an institutional norm that prized consensus and sought to achieve unanimity or near unanimity. The demise of this culture, and its replacement by one that tolerates knife-edge constitutional rulings, happened within living memory.
Until the early 1940s, the percentage of unanimous cases was in most years at least 80 percent, and splits of 5-4 or 4-3 were exceedingly rare. Since then, the overall percentage of 5-4 decisions has risen to 16.6 percent; before then it exceeded 5 percent only 10 times in 140 years.