In Donald Trump’s world, judges have no business interfering with his business—or his politics. U.S. District Judge Gonzalo Curiel, Trump said, could not fairly judge the
Judges are used to being the targets of criticism,
But the new president has taken the battle to a new level, legal experts say, turning what has historically been a mostly-respectful turf war into an outright assault on the very integrity of the judicial branch, its officers, and even the rule of law.
“It’s always happened
“When you attack individual [judges]
“When the president is attacking one of the branches of government, it undermines the whole system of checks and balances. He is diminishing and degrading one of those branches,” says Notre Dame Law professor Jimmy Gurulé, a former federal prosecutor and assistant attorney general in the George H.W. Bush administration. “People are listening; people are paying attention” to Trump’s comments, “and they are going to be using this to their advantage,” Gurulé adds. If the chief executive does not respect the rulings of the judicial branch, “they will say, why should we comply? Why should we respect the decisions of the judiciary? I think it’s dangerous,” the former Bush administration official adds. “When you start eroding these fundamental institutions, there’s a risk of the erosion of democracy and respect for both democracy and the rule of law. It sets a very bad precedent.”
Other elected officials have criticized or sought to politicize the
Legal scholars and historians note that Trump is hardly the first president to criticize judicial decisions or express his frustration with the judicial branch. Presidents and Legislative Branch Members, after all, have to face elections and are accountable to the public on a regular basis, while federal judges are appointed for life. That frees jurists from some political pressure, ideally making them more devoted to the rule of law than their own job security. But it can be agitating
FDR famously proposed expanding the Supreme Court to as many as 15 justices, a 1937 idea that grew out of his frustration that the high court had declared elements of his New Deal unconstitutional. The so-called “court-packing plan” (it would have added an additional associate justice when sitting justices 70 and older refused to retire) was defeated overwhelmingly in the Senate. Roosevelt was able to make appointments to fill vacancies during his presidency and ironically, by 1942, all but two members of the high court were his appointees.
Harry S. Truman tangled with the high court as well, notes William and Mary Law School professor Neal E. Devins, director of the school’s Institute of Bill of Rights Law. Truman had inherited some of FDR’s court and was incensed that the justices struck down as unconstitutional Truman’s effort to seize the U.S. steel industry as a wartime emergency move (though the Korean War had not actually been declared a war). Truman took it personally, later saying, “I don’t see how a court made up of so-called ‘Liberals’ could do what that court did to me.”
Brown v. Board of Education, the 1954 Supreme Court ruling striking down segregated schools, also had a political ripple effect, notes University of San Francisco Law School
Meanwhile, the court appointments themselves have become more political and partisan—at least in the eyes of voters and elected officials, who openly discuss having “liberal” or “conservative” allies on the bench. That impression is amplified by attention to high-profile, closely-decided cases such as the ruling making same-sex marriage the law of the land, experts say.
Most cases are decided unanimously or near-unanimously by the high court, Devins says, but “elected officials are seeing the court in more partisan terms than they ever have before.”
Trump, meanwhile, has escalated the conflict from a sort of rock-paper-scissors game, where each branch of government triumphs at different times, to an all-out war on the very integrity of the judicial branch, critics say. The undermining has been as brazen as Trump’s public statements and tweets—as was the case with his attack on Curiel—and as subtle as a legal argument to the federal court of appeals. In February, during 2017 arguments before the 9th Circuit Court of Appeals, for example, the Justice Department claimed that the court did not have the right to review the executive order. That was startling to legal experts, who say that the administration could have argued, with precedent, that the courts are supposed to give deference to the executive on matters involving national security.
“Even with that [traditional] deference, the administration’s position was, judges shouldn’t decide it,” says Trasviña, who is also former counsel to the Senate Judiciary Committee. “It wasn’t even a matter of saying, ‘Give us great deference.’ It was, ‘Don’t even look at us.’”
Trump’s pardon of Arpaio, too, might not have the cable news appeal of brandishing insults at judges, experts say, and on its face, was a limited-impact executive decision. But because Arpaio had been convicted of defying a court ruling, Trump’s official forgiveness was a way of saying that judges don’t really count and that the president can do (or undo) their work, say critics.
“The pardon is not legally significant,” in that people generally agree that Trump had the constitutional power to pardon the former sheriff, says Arizona attorney James Goodnow, a partner at the law firm Fennemore Craig. “But it was symbolic, in how Joe Arpaio thumbed his nose at the rule of law. Using his pardon power on Joe Arpaio was really encouraging and supporting that kind of conduct. We live in a world of checks and balances,” Goodnow adds. “Donald Trump doesn’t like checks. And he certainly doesn’t like balances.”
Jurists should expect to be aggressively questioned and criticized—if for no other reason than that they are protected by lifetime terms, say Washington, D.C., attorney Ilan Wurman, who served as general counsel on Republican Rand Paul’s presidential campaign. And while jurists may see their rulings as academic—even arcane—matters of law, elected officials, and voters are feeling the real-life impact “in some respects. Judges bear at least some responsibility for the political attacks that are brought upon them
So while the high court might have upheld Obamacare or same-sex marriage on the justices’ majority interpretation of the Constitution, “rightly or wrongly, half of the country thinks they have been robbed of a fair fight,” Wurman says.
The attacks on the judiciary come as public support for the country’s institutions is waning—an average of 32 percent overall, a 2016 Gallup poll found, with the Supreme Court clocking in at 36 percent. The problem, Gurulé says, is that not only will judicial decisions have less power if elected officials or the
Democracy “is supposed to be based on [the U.S.] model, Gurulé says. “So it is a big deal. He needs to be called out on this as it
But given political tensions in the U.S.—and the political dividends elected officials