If President Thomas Jefferson could have rewritten the Constitution in 1803, he probably would have made sure that no chief justice of the Supreme Court would ever again do what Chief Justice John Marshall did in Marbury v. Madison, namely, define the power of the Court in a way that made the judiciary truly a co-equal branch of government through the power of judicial review. Jefferson inherited a judiciary packed with Federalists by his predecessor President John Adams, including the appointment of John Marshall. The Adams-wing Federalist view wanted a strong central government while the Jeffersonians wanted nothing to do with centralized power, preferring a government as close to a true democracy as possible, accepting the pragmatism of the republican form in which people elected representatives (unlike a pure democracy in which the people come together to vote directly). Jefferson hated Marshall and disagreed vehemently with his ruling in Marbury, but Jefferson also accepted the rule of law and did not act to subvert the chief justice.
134 years and many frustrated presidents later, President Franklin D. Roosevelt tried the approach of “court-packing” to ensure support for his legislative proposals in the New Deal. Roosevelt proposed enlarging the Supreme Court from nine to 15 members so that he could appoint a majority of justices who would support his legislation. He lost, and the nine member court remains to this day.
Many other presidents have railed against the Supreme Court and lower courts when encountering the results of the system of checks and balances ingrained in the Constitution and our system of government. See: Richard Nixon. So, in one sense, President Donald Trump is not necessarily breaking new ground by complaining about courts ruling against him.
But notwithstanding history, there’s something about the way in which Trump complains about the courts and the judges who rule against him that is both seriously inappropriate and deeply worrisome for the health of our nation. Disagreement is one thing, but wholesale disrespect, personal attacks on judges, and threats to bypass the legal system entirely fly in the face of the Presidential Oath of Office to “preserve, protect and defend the Constitution of the United States.” Put another way, the president is supposed to respect and uphold the law, not trash the law and its arbiters.
President Trump is notorious for launching personal and harsh attacks against anyone and everyone who crosses him, so it’s not surprising that, once again, he has taken to Twitter not only to trash the 9th Circuit Court of Appeals but also to engage a skirmish with Supreme Court Chief Justice John Roberts. The instant case, as we lawyers like to say, was not even at the appeals court yet, but a case in the U.S. District Court for Northern California. Judge Jon Tigar issued a temporary restraining order against the Trump Administration’s November 9 proclamation by-passing current immigration laws to deny asylum to refugees entering the U.S. illegally at the Mexican border. “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Judge Tigar wrote in his order.
Predictably, Trump lashed out at the judge, calling him a name that in Trump’s mind is the worst possible label — an “Obama judge.” He also tore into the 9th Circuit Court of Appeals, which has not even received the case yet. Trump called the appellate court “a disgrace.” The 9th Circuit is the largest in the country and has a reputation for being progressive; the 9th Circuit has ruled against Trump actions in a number of cases, most recently upholding the nationwide preliminary injunction against the Trump Administration’s effort to end DACA. But a number of other appellate courts with judges of all backgrounds have ruled against the Trump Administration’s actions across a wide range of issues from immigration to transgender troops to the Keystone pipeline.
Chief Justice John Roberts, somewhat uncharacteristically, decided to take a public stance against Trump’s insinuation that judges make decisions based on who appointed them. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement released by the court’s public information office. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them….That independent judiciary is something we should all be thankful for.” Even some conservative lawyers like George Conway responded to enlarge and correct the record. Historians note that one of the most progressive courts in U.S. History was led by Chief Justice Earl Warren appointed by Republican President Dwight Eisenhower. Starting with Brown v. Board of Education in 1954 and on through the 1960’s, the Warren Court rewrote American civil rights history, declared laws banning interracial marriage unconstitutional in the Loving case, expanded the rights of the accused in the Miranda case, established the accused’s right to legal counsel in the Gideon case, established the legal basis for the right to privacy in the Griswold case, strengthened free press against libel accusations in the New York Times case, and broke new ground in many other areas of the law. So much for courts going along with the party lines! Independence is the primary characteristic of judges, and the judges I have known pride themselves on that characteristic.
Trump, of course, did not stand idly by and let the Chief dis him. Instead, the Very Presidential President fired back with more tweets criticizing Roberts and slamming the 9th Circuit including this statement: “Judges must not Legislate Security and Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written!” (Tweet of President Trump, November 22, 2018).
While it’s true that many presidents across the two centuries of this republic have railed against judges who ruled against their actions, Trump’s rhetoric is well beyond an intemperate disagreement on the merits. To accuse judges of fomenting “bedlam, chaos, injury and death” is extreme demagoguery. Judge Tigar’s decision is nothing of the kind, and the 9th Circuit has not even ruled on the case yet. But Trump’s attack on the judiciary is clearly intended to undermine the balance of powers, to inflame his base against whatever the courts might say, and, most dangerously, to foment exactly the kind of “bedlam, chaos, injury and death” that he accuses the judges of fostering.
Respect for the rule of law is what has kept the United States reasonably functional as a democratic republic for 230 years. Yes, there are times when the law has been oppressive, times when courts made terrible decisions, times when “bedlam, chaos, injury and death” seemed likely to overwhelm the moment. The Civil War was certainly such a time; the aftermath of that war fostered oppressive and racist laws and court decisions that lasted for another century, and changing those laws and decision caused more bloodshed and horror during the 1950’s and 1960’s, and even to this day in some places.
But keeping oppressive and racist laws in place because oppression is the only way to govern is wrong, immoral and a complete renunciation of the values of our nation. And so it is that the judges confronting the Trump Administration over the racist and oppressive policies on immigration at the Mexican border are addressing profound issues of the kind of nation we are and want to be. Our legal system enshrines the founding ideals of freedom and the right to enjoy life, liberty and justice for all. President Trump mocks these values every time he speaks in the most disparaging terms about immigrants — more recently, “the caravan” — as if there are not real human lives at stake, real stories of tragedy and suffering and heroism, people with hopes and dreams for their children to have the same kind of future that our own immigrant ancestors wanted for us.
The law reflects the fundamental values of the society, and the judiciary is the branch of government that stewards the law as part of the system of checks and balances, a guardrail against tyranny and a voice for timeless national ideals.
President Trump may not agree with everything that judges do, but as the leader of this nation and someone charged with upholding the Constitution, he should speak and act with respect, disagree temperately and prudently, and refrain from insinuating in any way that the judicial branch of government is illegitimate. We need our courts to be able to operate independently, free from fear and intimidation, and free from the kind of unprincipled and uncalled for undermining that presidential disparagement will foster. Judges are public officials who devote their lives to the rule of law, to fairness and justice. Judges don’t make a lot of money, are careful about their public statements and public activities, and are rigorous about upholding their duties to the people of this nation. We need our national leaders to show some respect for these dispassionate public servants.