The law will not turn a blind eye, Mr President
The judiciary is the last check against autocratic rule and is essential for the preservation of life and liberty
US President Donald Trump’s public conflict with Chief Justice John Roberts provided an extra zing to the Thanksgiving turkey this holiday season.
The president was incensed by District Judge Jon Tigar’s issuance of a temporary restraining order against his proclamation barring those crossing the southern border illegally from claiming asylum. Trump launched into the 9th Circuit Court of Appeals labeling it a “disgrace” and claiming “Every case that gets filed in the Ninth Circuit we get beaten. It’s a disgrace.” The Chief Justice — a judge with strong conservative credentials appointed by president George W Bush — apparently had had enough. Roberts said: “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.”
Unsurprisingly, Trump did not take the rebuke lying down and tweeted: “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 … 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!”
To be sure, this is not Trump’s first attack on the judiciary. He previously attacked a judge who enjoined the travel ban labelling him a “so-called judge,” and questioned the independence of a judge of Mexican ancestry. He has also labelled the US justice system a “joke” and a “laughing-stock,” called the courts “slow and political,” accused judges of putting the country “in such peril,” and opening “up our country to potential terrorists.” He also entered into a public conflict with SC justice Ruth Bader Ginsburg after she called him a “faker.” Trump tweeted that Ginsburg has “embarrassed us all by making very dumb political statements about me. Her mind is shot – resign.” Trump has also attacked the court system in Mexico and South Africa before becoming president.
Notably, Trump is not alone in attacking the judiciary. In fact, attacks against judges and the judiciary appear to be growing in many parts of the world. For instance, Poland is in the throes of a constitutional crisis over judicial independence after the government lowered the retirement age and sought to force 27 senior judges into retirement. The Chief Justice has defied the government’s order and the European Commission has taken the government to the European Court of Justice citing the need to protect judicial independence and the rule of law. In Hungary, Viktor Orban has been accused of attacking judges and undermining judicial institutions. Judges have also been subject to harsh criticism in recent times in countries including Australia, Hong Kong, India, the UK, Kenya, and Pakistan.
This is a dangerous trend and whatever the flaws in judicial reasoning, the institution needs to be protected from unseemly attacks by politicians.
Why is judicial independence important? Montesquieu wrote in the Spirit of the Laws (1748): “Nor is there liberty if the power of judging is not separate from legislative power and from executive power.
If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge would have the force of an oppressor.” Shortly thereafter, Blackstone wrote in his Commentaries: “the public’s liberty … cannot subsist long in any state, unless the administration of justice be in some degree separated both from the legislative and also from the executive power.” He noted that if the judicial power is “joined with the legislative, the life, liberty and property of the subject would be in the hands of arbitrary judges,” whereas, “joined with the executive, this union might soon be an overbalance for the legislative.”
And these ideas germinate from Bracton’s work in the 13th century, explaining that “the King ought not to be subject to man, but to God and the law, because the law makes the King.”
It took over four hundred years of judges serving at the pleasure of the monarch — after Bracton’s words were written — and being subject to dismissal when they dared to rule against the crown before judicial independence was won in England. The idea was embraced by the American Constitution’s founders and is now an established canon in modern constitutions.
Aside from national constitutions, the Universal Declaration of Human Rights guarantees in article 10 to everyone “full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge.” Similarly, article 6 of the European Convention on Human Rights declares that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
To conclude, an independent judiciary is the last check against autocratic rule and is essential for the preservation of life and liberty. Pesky judges who hold our rulers to account may be an inconvenience for those in power but without them we risk returning to a dark past. Notwithstanding the distractions posed by migrant caravans and judicial activism, the independence of the judiciary must not be surrendered. And President Trump may need an independent judiciary most of all — judges may be his last hope when his political opponents come after him.
Pesky judges who hold our rulers to account may be an inconvenience for those in power but without them we risk returning to a dark past.