Mr. Trump’s enemies list is long. Mexicans. Muslims. Vanity Fair. The New York Times. The Washington Post. Polls (when unfavorable). Fact-checkers. Democrats. The media broadly construed. Judge Curiel. John Lewis. Meryl Streep. Saturday Night Live. Those requesting his tax returns (not just journalists?).
He has now added an entire branch of government, this branch of course being the judicial branch.
If you think that this is not dangerous, guess again.
The judicial branch was famously characterized by Alexander Hamilton in Federalist 78 as the “least dangerous” branch, controlling neither the sword nor the purse, having “neither force nor will; only judgment.” While scholars have debated the extent influence of the judiciary in the separation-of-powers system — whether calling attention to the courts as vehicles for protection of rights, or calling attention to Title VI of the Civil Rights Act of 1964 as being a stronger impetus for desegregation of the American South than was Brown v. Board of Education — it is undeniable that the Supreme Court has served a crucial role in the enforcement of constitutional rights over the decades.
This is enabled in no small part by the fact that the American political system provides for judicial independence — with lifetime appointments and the inability to be removed based on its decisionmaking — thus enabling justices to avoid political pressures that might influence their rulings. It is also enabled by our institutional norm of judicial legitimacy, according to which the branches respect the right of the judicial branch to render the decisions that it does, with respect for the decisionmaking process if not the substance of the outcomes themselves.
To be sure, presidents have spoken out about their views as to the substance of decisions, with President Obama saying publicly that he disagreed with the outcome of Citizens United. But he did not attack the Court or the justices who sit on it. He attacked the particular outcome.
Enter Donald Trump.
The relationship between the Trump Administration and the judiciary has already been one marked by tension, with Kellyanne Conway initially holding that the district court restraining order “really doesn’t affect” the Trump Administration’s implementation of the notorious executive order of prohibiting travel from seven predominantly Muslim nations. While we do not always agree with the outcome of judicial rulings, the rule of law necessitates compliance with them, and appeals procedures are in place in order to challenge adverse actions. This does not, however, obviate the need to comply in the meantime, a norm that initially was not followed.
Following Judge Robart’s determination that there should be a nationwide restraining order with respect to this EO, Mr. Trump in true Trump fashion lashed out on Twitter at the “so-called judge.” While party affiliation would have no bearing on Robart’s legitimacy as a judge, it is worth noting that he was a George W. Bush appointee who was confirmed unanimously. He soon thereafter held (again via Twitter) that in the event of a national security problem, the American people should blame Judge Robart and the court system. Thus, we saw for the first time in modern American history, the President of the United States attacking the judiciary’s legitimacy and scapegoating it in the event of a hypothetical attack, likely setting it up to restrict its independence under conditions of such heightened national security risk. Absent such judicial independence, judges are not free of political pressures in their decisionmaking and thus may operate as inadequate checks on the other branches and intrusions of rights.
So, rather than accepting the outcome and following the appeals process, he filed the appeal and engaged in a Twitter tirade the compromised the very legitimacy of the branch of government dedicated to the safeguarding of rights that are left in question by the EO and its implementation’s depriving of due process and equal protection under the law. He went on to question what our country is coming to when a judge is able to halt a Homeland Security ban. He further has tweeted insidiously that we are at risk for terror attacks — an effort that like his constant falsehoods about crime rates is with the aim of instilling fear and thus willingness to forego some civil liberties — and thus that courts must act fast.
This shows a fundamental lack of understanding of, and appreciation for, the important role that courts play in our political process. The business of courts is not to act quickly, but rather to be a slower-moving political authority that is not acting out of political expediency, but rather in defense of the constitutional principles that are dangerously under attack currently between the EO and Mr. Trump’s frequent attacks on the media.
When appealing Judge Robart’s order, the Trump Administration further went on to hold, “A reviewing court would not be well-equipped to ascertain the quantum of risk, or what is a reasonable margin of error in assessing risk… Judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”
Liberty and security could conceivably be in tension with one another at times, which is why times of national security crisis typically coincide with stronger presidential powers and some degree of constraint on liberties (e.g., the Patriot Act). The Supreme Court’s role is largely the guardian of liberty and it is worth emphasizing also that the ban is not targeting countries from which Americans have suffered particularly, thus raising important questions as to any validity of a national security exception to the claims that his administration makes.
What is perhaps most striking about the Administration’s statement is the notion that judicial second-guessing of the president’s national security determinations is harmful.
“Judicial second-guessing” of the other branches is the job description of judges and justices, and has been since Justice John Marshall famously declared in 1803 in Marbury v. Madison that “it is emphatically the province and the duty of the judicial department to say what the law is.” Indeed, this check on presidential (and legislative) powers is an essential protection of the separation of powers, guarding citizens’ rights against government encroachments of which the Framers were concerned.
Perhaps before Mr. Trump seeks to “make America great again,” he should make Marbury great again.
Those defending Mr. Trump have similarly mischaracterized the critical role that the judicial branch serves in American politics. Mike Huckabee said on Fox that the executive branch historically “has emasculated itself by surrendering constantly to the idea that once the court says something, that’s it. It’s the law of the land… The court can’t make law. They cannot legislate.”
While it is true that legislation is pursued through Congress, the elected branch, and it is true that the judiciary relies on the other branches for the implementation of its decisions, judicial holdings create binding precedent, laws contrary to the Constitution are deemed invalid, and the American political system has a norm of compliance with such holdings, lest we compromise the very fabric of the rule of law governing our society.
There have been all too many moments of the Trump transition and early days of the presidency in which Mr. Trump and his advisors showed a frightening lack of understanding of the role of the president (a fact to which even John Yoo recently called attention) and the powers of administrative agencies in the separation of powers system. While one might find reasons to characterize their statements about the judiciary as being reflections of ignorance, it appears instead to be more deeply pernicious than that. (It is all the more egregious to millions that the man who is this ignorant about, and hostile to, the courts has been given the capacity to fill the seat left vacant by the passing of Justice Scalia, and kept vacant amid the Senate Republicans’ refusal to so much as grant Judge Merrick Garland a hearing.)
Never before has American government seen such a nefarious hostility to the institutions protecting these rights. While President Roosevelt provides a salient example of executive-judicial conflict, it is worth noting that President Roosevelt sought to expand protections of rights amid the New Deal, whereas the Court at that time was striking such protections invalid. As things stand currently, with undemocratic moves being made throughout the executive branch — whether the dissemination of falsehoods, the attacks on the media, the marked corruption, lack of transparency, and imposition of likely unconstitutional executive orders — and an all-too-obsequious and enabling legislative branch of the same party control, the courts stand currently as the sole buffer against further intrusion into fundamental democratic principles.
It is not hard to imagine why the Trump Administration would be so hostile to them. It is also not difficult to see why it is so dangerous.
It is up to us as citizens to be all the more vigilant to guard these ever-more-fragile rights before they are long gone.