A few weeks ago, I was in a conversation with a cashier at my local QFC as she scanned my purchases.  When she got to a bottle of wine – an amusing little Chianti – she asked me if I had ID.  I reached the legal drinking age half a century ago.  I realized that she was using humor to dilute the drudgery that comes with handling other people’s food purchases for eight hours a day.  I pointed out to her that there are hundreds of professional comedians out of work.  I asked her, out of respect for them, to stop cracking jokes for free.

If I were on similarly friendly terms with John Roberts, the Chief Justice of the United States, I would have made the same point to him after he pronounced that, contrary to President Trump’s claim, there are no Obama judges, Bush judges, Clinton judges, or Trump judges.  In his view, all members of the judiciary are equally conscientious in applying the law fairly and without bias.

He must know it’s not true.  It is true that some judges, originalists and textualists, are prohibited by their creed – if they are true to it – from manipulating their analysis to reach a pre-determined result.  That is not to say that they don’t slip from time to time; but when they do, they are departing from principle.  But an activist judge is acting according to doctrine when he or she interprets a statute or constitutional provision to achieve a desired result.  They are taught from an early stage that achieving those results is their purpose in judging.

Surely that philosophical difference explains why so many immigration cases come to the Ninth Circuit, which has a well-earned reputation for activism.  It isn’t a coincidence that advocates for open borders prefer to start their cases in that circuit.  They may know something that the Chief Justice wants to deny.

But he need not look that far afield.  He knows from personal experience that his criticism of the President’s complaint is unfair.

President Obama, in his 2010 State of the Union address, criticized the Supreme Court’s decision in Citizens United.  The nine justices were sitting in a row in their accustomed places in the middle of the House chamber.  A group of Democratic senators and congresspersons were sitting behind them and immediately jumped to their feet, jeering and clapping.  The President looked on, chin elevated, eyes gleaming.

I recall the Chief Justice’s facial expression and body language at that moment.  He wasn’t enjoying the experience.  However, he did not criticize President Obama, then or later.  Instead, he internalized the political message that the President delivered that evening.

While the case testing the constitutionality of the Affordable Care Act was under consideration by the Supreme Court, proponents of the statute kept political pressure on the Chief Justice.  Senator Schumer emphasized how unfortunate it would be for the reputation of the Supreme Court if it were to oppose the popular will on such an important matter.  Nice little court you have here.

A central issue in the case was whether the power granted to Congress to regulate interstate commerce was broad enough to support a statutory requirement that each individual who was not otherwise covered purchase health insurance.  The Chief Justice might have noticed – everyone else did – that the four justices appointed by Democratic presidents thought that the commerce clause justified the statute.  The five justices appointed by Republican presidents, including the Chief Justice, disagreed.

The Chief Justice upheld the statute under Congress’ taxing power.  When the Act was under consideration by the Congress, its proponents emphasized repeatedly that the financial penalties built into the law were not taxes.  During briefing and argument, the government at no point asked that the  Court to uphold the Act as a tax.

The Chief Justice cannot expect anyone who remembers those events to believe that he examined the law, the facts, and the Constitution and made an objective decision without any reference to political issues or to the Court’s reputation.  He did what he had to do to avoid another public airing of grievances by the President of the United States.

He did it again when the statute came in front of the court a couple of years later.  Recall that the statute was written to create financial penalties for states that did not establish health insurance exchanges.  Those states would not receive subsidies available to states that complied.  This was a feature of the statute favored by its architects.  Even so, many states refused to establish exchanges.  The Treasury adopted regulations that allowed the federal government to take the place of the states that failed to set up exchanges.  That action raised a Constitutional issue because the Constitution prohibits the expenditure of funds from the Treasury except pursuant to a Congressional enactment.  Once again, the Chief Justice acted as the blue pencil editor, revising a statute after the fact to make it say what the Executive told him it needed to say to achieve the Executive’s purposes.

You may think that the result he reached is the right one, the one best for the country.  Fine.  At the same time, you would have to agree that he didn’t put on a blindfold and do justice without fear or favor.  He acted to protect the institution he heads from attacks by a political operation that did not intend to go quietly if he ruled against them.

I am bothered by his craven surrender to a political threat but I am disgusted by his outrageous claim that neither he nor any of his colleagues in the judicial branch would ever do such a thing.