The Washington PostDemocracy Dies in Darkness

Opinion John Roberts said there are no Trump judges or Obama judges. Clarence Thomas didn’t get the memo.

Justices of the Supreme Court sit for their official group photo on Nov. 30, 2018.
Justices of the Supreme Court sit for their official group photo on Nov. 30, 2018. (Jabin Botsford/The Washington Post)
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LAST NOVEMBER, President Trump, irate at a federal district court ruling contrary to his administration’s attempt to stop some migrants from seeking asylum at the border, blasted the judge, Jon S. Tigar, as a biased “Obama judge.” Standing up for the integrity of the federal judiciary, of which he is the titular head, Chief Justice John G. Roberts Jr. issued an extraordinary statement contradicting Mr. Trump, albeit without naming him. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Mr. Roberts said . “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Some of Mr. Roberts’s colleagues on the Supreme Court did not get the memo. Or so it would seem from the innuendo Justice Clarence Thomas aimed at U.S. District Judge Jesse Furman in an opinion dissenting from the court’s Wednesday ruling that upheld Mr. Furman’s decision to block a Trump administration plan to ask the citizenship of census respondents. Joined by Justices Brett M. Kavanaugh and Neil M. Gorsuch, Mr. Thomas blasted Mr. Furman’s finding — affirmed not only by Mr. Roberts but also four other justices — that Commerce Secretary Wilbur Ross had unlawfully misstated his true reasons for adding the question. Mr. Thomas went well beyond disputing Mr. Furman’s legal reasoning to questioning the district judge’s good faith, accusing him of “transparently” applying “an administration-specific standard.” He portrayed Mr. Furman’s presentation of evidence that Mr. Ross acted on a pretext as akin to “a conspiracy web,” that could be woven by “a judge predisposed to distrust the Secretary or the administration.”

Though couched in the indirect language of a legal opinion and its accompanying specialized notations, this was unmistakably a Trump-like insinuation that Mr. Furman, elevated to the federal bench by President Barack Obama in 2011, had ruled on his personal preferences rather than the law. Coming from a justice of the nation’s highest court, Mr. Thomas’s sour words regarding a lower-court colleague were not only destructive and unfounded. They were also self-contradictory, given that, elsewhere in the very same opinion, he faulted the court majority for “echoing the din of suspicion and distrust that seems to typify modern discourse.” For Mr. Kavanaugh and Mr. Gorsuch to join such an opinion was a lapse in self-awareness on their part, given how readily Democratic partisans accuse them of bias in favor of the president who appointed them — Mr. Trump.

Mr. Thomas’s ill-considered language undermined the defense of the judiciary that the chief justice had previously attempted to mount. And to what end? Mr. Thomas and his two colleagues could have made precisely the same legal argument without it. “The law requires a more impartial approach,” Mr. Thomas protested, referring to Mr. Furman’s ruling and the Supreme Court’s decision in favor of it. Actually, that admonition applies to him.

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