The American Chief Justice, John Roberts, has complained that judges are being trashed, and has warned that the rule of law is being endangered.

In the good old US, this is being interpreted as a timid reproof of people such as Donald Trump, who regularly call judges who rule against him crooks. Trump rails against any courts that disrupt his agenda and blatantly ignores rulings that he doesn’t like. Not a few of his inner circle do the same. Neither Roberts nor his colleagues have the guts to make more than a squeak. Roberts did not, for example, mention Trump in his speech.

Outside America, observers wonder whether Roberts is instead talking up an industrial demarcation dispute. Perhaps he thinks that only the court itself is allowed to trash its reputation and to bring discredit on the rule of law. It’s doing a good job and should be allowed the exclusive right to interpret the law the way it wants. It has little regard for what the American Constitution or laws made by Congress indicate. Mostly this is to serve the political interests of Donald Trump, and the financial interests of American billionaires and libertarians.

It also serves modern ideological ideas of very limited government, which implicitly regard with disfavour any idea of a protective state, giving rights or benefits for the poor, the sick, or those discriminated against. Those who want to reduce state functions are entitled to hold such views, but the opinions are not constitutional requirements. The minority on the court are also intensely political in their judgments, but their jurisprudence (and their theory of the functions of government) falls within conventional limits, including nearly 250 years of precedent. The majority scarcely bother to pretend that their reasoning fits within some continuum of judicial thinking, adapted incrementally for present circumstances.

In other common law nations, judges are appointed by the executive government, but although the US president has the exclusive right to nominate (federal) judges, the American Senate has the right to approve or disapprove his choice. It was once very rare for a nominee to fail. But as the nominations have become more overtly political, with Democrats tending to appoint political liberals and Republicans conservatives, the process has become deeply politicised and personal.

Middle-of-the-road judges are now as rare as once they were the most common. The problem with the Roberts majority is not that they are old-style Republicans, but that they come from the extremes of politics. Judges increasingly give the appearance of being delegates of the forces that appointed them. At least three judges, whose character came into question during Senate hearings, have been heard expressing satisfaction about how they have repaid the compliments in spades (“payback”) with their post-appointment rulings. They hang out with their ideological and philosophical mates and make little secret of their partisanship.

Craven court is not a check, and hardly a balance

In the end the American judiciary is doing as much, if not more, to bring down the American system of government as Trump and his close cronies, or as the American Senate and Congress that he has completely intimidated. America has had eccentric and power-hungry presidents in the past, but the very checks and balances within the system have tended to push the system into equilibrium. Even the Supreme Court has made serious mistakes – by upholding slavery, for example, and later, the Jim Crow system. It has smiled benignly on any number of moral and ethical atrocities, including ethnic slaughter of native Americans and, as late as the 1920s, massacres of uppity black Americans. But one factor holding some of the judges from their worst, and from their worst prejudices, has been the need to explain their reasoning and thinking in conventional legal terms. That may be scant comfort to the immediate victims of the injustices they perpetrate, not least by their fanatical devotion to gun rights. But when the pendulum swings, as it will, the job of undoing their bad thinking may be very difficult. They have deliberately created a new legal civilisation that will be hard to undo. A return to a real justice system may have to follow a complete re-imagining of the court in a new Constitution.

Here in Australia, and once upon a time in America, we have heard politicians and others complain of judicial activism, by which some judges are said to go beyond the strict letter of the law to impose their personal view of appropriate outcomes. Peter Dutton, for example, wanted immigration laws to be read to approve any decisions he made about who should be deported, or stripped of citizenship. He didn’t want judges, liberal or Liberal, as much as he wanted judges out. But he was frustrated because the constitution insisted judges should supervise adherence to the rules.

The High Courts and Federal Courts read the law to say that human rights to a fair hearing or natural justice could not be simply stripped away. Dutton tried to help arrange the subversion of the system by having tribunals stacked with ex-politicians, and partisan friends and relations. It seemed to incorporate a view, not unfamiliar with National Party rorters, that the capacity to get the law and the decisions one wanted was one of the spoils of office, like the right to divert an apolitical grants system towards the pockets of party supporters.

We have some judicial activism here, but it is cautious and incremental. It does not make it up as it goes along

Judicial activism in Australia, Britain, or New Zealand or Canada, involves making the law. But it does not involve making it up. Nor has it depended on fanciful speculation about how the founding fathers might have responded to a modern problem. Our constitution is the first book of rules, setting out the respective powers of arms of government, including the parliament, ministers and the bureaucracy, and the courts. Under our system of separation of powers (which are — or were — much the same in the US) it is for legislature to write the laws, but they must be authorised by the constitution. It is for executive governments to implement them, and for the courts to determine whether those laws and the actions which have followed them are within the powers given to the parliament and executive government.

But laws, however tightly written are not computer programs. Judges cannot simply read the words of a statute, determine the facts and feed out the correct answer. Life is no longer so simple. One cannot spell out a rule for every possibility, but establish a broad rule. It is left to others, bureaucrats and judges, to fill in the gaps, if through well-understood legal ways of thinking. In many areas of the law, we use phrases such as “the best interests of the child” to make it clear that we expect the judge to use common sense rather than literalism to come to a just result.

On top of the words of constitutions, statute and precedent are many conventions and understandings that are critical to any understanding of how government works. These have a lot to say about conflict of interest and bribery for example. But however worded, they incorporate a fundamental principle that the job of government is government in the public interest. It is not about using government to feather one’s own nest. Or arranging affairs so that your mates have an unfair advantage. Or that your enemies are restricted in their rights to a fair go.

We disapprove of those who bribe or intimidate government decision-makers, or who pervert the law to their own ends. The law makes clear that the very possibility of conflict, or the appearance of it, must be avoided as much as outright conflict. Not every area of government is as well-covered as they should be, but the principle is unchanged. The judicial arm has failed to fully express its rules. For example, if one challenges a judge over conflict of interest, the judge will examine his or her conscience and decide “objectively” if anyone could reasonably think he might be biased. (I think they are never as suspicious of their situation as almost everyone else is.) The US has on paper, better sets of rules, except for the judicial arm where disgraceful conduct abounds without any intervention by other judges.

Rules covering legislators, presidents and judges are, of course, only as good as the will to monitor, to verify and to enforce. This year, as in the first Trump era, the will to enforce the law or ethical rules against Donald Trump has been obviously absent. Mostly it has been the courts at fault, including by deliberate delay.

The appearance of bribes, kickbacks and breach of the constitution

This week, for example, the Qatar royal family, whose country is a dictatorship, decided to gift a $600 million Boeing aircraft to Trump personally. Words used, both by the donor-dictator and Trump himself, suggest that its luxurious fit-up will be adapted to become Air Force One, at least during the Trump Reich, which may not, he thinks, end in January 2029. After all, it is only the Constitution which forbids a third, or 100th term, and who know how the Supremes would interpret that.

The American Constitution has a specific provision forbidding the taking of any present or “emoluments” from a foreign government without permission from Congress. An emolument is a gift or anything of value. In practice in the US, as in Australia, a gift to an official can be accepted if it worth only a small sum, or otherwise must be handed in. It must always be reported.

American senior judges of lower levels than the Supremes have in the past restrained Trump from numerous previous breaches of the rules. Appeals went to the Supremes, but hadn’t been heard before his first term expired. Thus, the Supremes dismissed the question as “moot”.

Qatar was, until recently, regarded by the US Government as an active supporter of terrorists, including Hamas. It has now been embraced by Trump during his sweep through the Middle East. Not coincidently, the royal family’s airline has recently ordered 160 twin-aisle Boeing aircraft in an order for $90 billion. That’s an order that could not go through without US Government approval.

One does not have to regard this gift as a bribe, or a kickback, or even, as Trump and his juvenile press secretary seems to think, a gift which fell, unsolicited from heaven, from people not determined to influence his judgment. Trump insists it will be put to exemplary public use and not his own personal advantage, and, on his retirement, be gifted to the Donald Trump presidential library.

But so obvious is the appearances of impropriety, it is easy to understand why the founding fathers had such a rule. Even more so, why Congress and the courts have had a long history of enforcing it.

This gift, indeed, is for many Trumpist Republicans in the legislature the first occasion in which they have expressed some unease. Mostly they have been passive at obvious abuses of power, including improper self-aggrandisement by Trump personally and by many of his insider cronies. This has been because of the control that Trump has over their prospects of re-election. In the US (as often in Australia), honour is nothing if survival is at stake.

Only on Thursday was the public informed that the US attorney-general was one who profited by through the dumping of shares in the hours before Liberation Day, when prices crashed. Many others among the cronies have plainly benefitted personally from their involvement in, and their insider knowledge of, Trump decisions. Trump himself is openly profiting from active businesses, including fresh ones involving crypto-currency. In any other democracy, it would be called corruption so plain that it would be obvious to the Australian NACC.

It’s not impossible that it may also lead American Supreme Court justices to wonder whether it is time to draw some lines around the theory of unlimited Trumpian power. The Trumpist Supreme Court was, in many respects, pre-selected for belief in removal of most traditional constitutional limits on presidents.

The judges have been shamefully craven in deferring to his thoughts and his supposed mandate. Unlike politicians in the legislature, they cannot be punished by Trump. He thinks he has them in his pocket, but they could be independent if only they could summons the integrity and the guts. In this sense, they are the hope of the world, unlikely saviours when only they can get their courage up.

They should contemplate that the mud of obviously Trumpian lawlessness hangs on them as much as on Trump and his gang. Hell, if it were up to me, they would end up in jail alongside Trump and his mates, if only for their intellectual dishonesty.

Forget the rationalisations, the special pleading, the explanations, or the blatant abuses designed to benefit the insiders. Ethical principles, basic honesty and respect for the political conventions are complete strangers to all involved. Including the judges, some of whom are strangers to propriety, and others who condone it.

These are not innocent mistakes or misunderstandings, by people unversed in the rules. Nor can the plain breaches of honest government be excused as part of a revolution in the system of government brought on by Trump’s election. Americans may have voted for Trump and a new way. But they did not authorise wholesale larceny, the acceptance of bribery and corruption, or the transactional approach which seems to mean that Trump will act on behalf of America only if there is something in it for him.

It’s not for Australians to throw the bastard out, or to impeach the court. It’s for Americans to come to their senses. But we are daily confronted with the evidence that Trump’s America does not share our values. We do not want, and we do not need, the US. Its economic, social and strategic interests are not ours. Its moral values are not ours. It is not a military partner we can rely on, and, in any event, we do not share its causes. We should be looking for respect and friends, allies and economic partners closer to home, among Indonesians, Koreans, Japanese and the Chinese.