USA TODAY International Edition
JUDGE ABUSE IS PERFECTLY PRESIDENTIAL
Those who came before Trump didn’t have Twitter, but they found ways to make it clear
When President Trump called federal district court Judge James Robart “this so- called judge” after the issuance of an order temporarily restraining Trump’s executive order on immigration, the response from all sides of the political spectrum was immediate and alarmed. It was called “bonechilling” and “authoritarian.”
However, it was not only relatively mild for Trump but positively tame in comparison with past conflicts between presidents and judges. Even so, Trump might want to consider history before he follows the lead of his judge- trashing predecessors. Article III, the part of the Constitution that gives judges their power, is designed for days ( and presidents) like this. It is why presidents have largely found that attacking judges did more to destroy their own credibility than that of their judicial antagonists.
Undeterred by the firestorm over his criticism of Robart, Trump then attacked the 9th Circuit Court as “disgraceful.” In a curious distinction, Trump added, “I won’t say the court was biased. But so political.”
While these comments were unfounded, they are not necessarily outside of the norm for presidents in criticizing judges. In 2010, President Obama criticized the justices sitting in front of him at the State of the Union for their ruling in Citizens United v. Federal Election Commission.
FROM THE 1ST CHIEF JUSTICE
At the start of the republic, most judges were highly political — often moving freely between political and judicial offices. The first chief justice, John Jay, ran for elected office twice while keeping his seat on the Supreme Court and left in 1795 to become the governor of New York. John Marshall opposed Andrew Jackson for the presidency. Charles Evans Hughes challenged Woodrow Wilson in 1916 and then returned to the court in 1930.
Modern justices have largely ( and wisely) set aside such ambitions, but our history is replete with bare- knuckled fights between presidents and their judicial antagonists.
Thomas Jefferson and Chief Justice Marshall disliked each other despite being third cousins once removed. Marshall expressed “almost insuperable objection” to Jefferson as “unfit for the chief magistracy of a nation which cannot indulge these prejudices without sustaining deep personal injury.” Jefferson re- ferred to Marshall as a man of “profound hypocrisy.” He viewed Marshall as a Federalist hack, particularly after his decision on the right of Congress to charter the Bank of the United States.
Abraham Lincoln also did not hide his contempt for Chief Justice Roger Taney after his infamous ruling in Dred Scott v. Sandford supporting slave owners. Not only did Lincoln criticize Taney on the campaign trail, he did so at his first inauguration. Before Taney gave him the oath of office, Lincoln proceeded to eviscerate the decision with Taney sitting like an errant child behind him as Lincoln decried the opinion as “erroneous” in its reasoning and “evil” in its impact.
‘ FIRESIDE CHAT’
Other presidents took a more personal tack. After Theodore Roosevelt’s nominee to the court, Oliver Wendell Holmes, ruled in favor of a railroad, Roosevelt declared, “I could carve out of a banana a judge with more backbone.” Dwight Eisenhower attacked his nominee, Chief Justice Earl Warren, as the “biggest damn fool mistake I ever made.”
Franklin Roosevelt had not one but four justices who drove him to distraction in their invalidation of his New Deal measures. Just as Trump goes to Twitter, Roosevelt went to the newest technology of his time to speak directly to the public: radio. In a “fireside chat,” he called for the expansion of the court by one new justice for every justice older than 70. He lamented how such old justices can’t “perceive their own infirmities.”
Presidential threats have proved to have little impact on federal judges who were given life tenure by the Framers, specifically to insulate them from public pressures and attacks.
The courts and the presidency developed certain rules of engagement that have served both well. Judges learned to stay out of politics, while presidents learned to avoid personal attacks on judges.
If Trump continues his battles with judges, he could still prevail, but he should always remember that judges get the last word, even if he thinks they are wrong.
As Justice Robert Jackson wrote in a 1953 Supreme Court decision, “We are not final because we are infallible, but we are infallible only because we are final.”