Are Donald Trump’s remarks about the judges handling the challenges to his refugee order a threat to an independent judiciary? Yes, they are — but that threat is just a visible symptom of a larger problem not of Trump’s making.
The Rule of Law, Not a Rule of Lawyers
The second is free markets: We involve the greatest number of people in making economic decisions, rather than trust in central planners.
The third is federalism: We put government decisions closer to the people in order to involve a more diverse set of decision-makers who can experiment with different paths for different communities’ needs.
The fifth, which ties together democracy, federalism, and tradition, is deliberation: We have a republic, not a pure democracy, so that government decisions are not the process of hasty panics but are openly debated and resolved with support that is deep, geographically wide, and enduring over a series of elections, so that continuing to enforce today’s laws tomorrow has legitimacy.
And sixth, without which the other five are powerless, we have the stable rule of written law so that the democratically enacted decisions reduced to written law by the representatives of the people with due deliberation are honored until overturned by the same process and not easily discarded by a narrow professional elite.
This is not the system designed by Washington, or Jefferson, or Adams, or Hamilton, or Madison, or Franklin, or any of the other Founding Fathers; it’s the system designed by deliberate compromises among all of them, ratified by the people of their day, and changed repeatedly since by the people when the need for changes became apparent. Taken together, the American system is designed to steer a middle path between the self-interested and parochial pretensions of an aristocratic or oligarchic elite and the passions and self-interests of a populist mob. It is also designed to steer a middle path between the ossified rule of the past and the fickle moods of the present. The people remain sovereign and can change any law they like — if they act in large enough numbers over a broad enough area across a sustained period of time.
We do not have an independent judiciary because lawyers and judges are wiser than the rest of us, nor do we have one because decisions reached without the input of the people are more legitimate or more just than decisions made by the people. We have an independent judiciary because the rule of written law embodies the collected wisdom of democracy, deliberation, federalism, and tradition, and is relied upon by free markets. We keep politicians accountable to the voters so that they can say, “This is my decision; vote me out if you disagree.” We keep judges independent so that they can say, “This is not my decision; this is the way the law was written, and it is the same law for everyone.” When decisions are not dictated by how the law has already been written and enacted, those decisions should not be made by independent judges but by accountable politicians.
Working the Refs
President Trump’s executive order on refugees was temporarily halted by a federal judge in Seattle without much in the way of legal reasoning, and it will shortly be ruled on again by a three-judge panel of the Ninth Circuit, one of whom is an Obama appointee, another a Carter appointee. If the rule of written law is the point of judicial independence, it shouldn’t matter who appointed the judges, since their independence should produce uniform results regardless of their political leanings. And if you believe this is the way courts actually work, then naturally it is outrageously improper for prominent political figures to harangue the courts in an effort to influence their decisions.
Trump has been doing a lot of haranguing. A sampling from Twitter:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!— Donald J. Trump (@realDonaldTrump) February 4, 2017
What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?— Donald J. Trump (@realDonaldTrump) February 4, 2017
Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision— Donald J. Trump (@realDonaldTrump) February 4, 2017
If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!— Donald J. Trump (@realDonaldTrump) February 8, 2017
Not only is Trump calling into question the legitimacy of Judge Robart (calling him a “so-called judge”), he’s essentially trying to politically blackmail the appeals panel by suggesting that they would be responsible for the consequences if their decision leads to a terrorist attack by someone he tried to keep out of the country. If the judges are doing nothing but interpreting written law, this is a terrible thing to say.
Of course, Trump is being intemperate as usual, and blunter than politicians are supposed to be. But he’s not the first to do this. Andrew Jackson, a former Tennessee Supreme Court justice, went the furthest, famously refusing to abide by a Supreme Court decision (“John Marshall has made his decision, now let him enforce it.”) Franklin Roosevelt, an alumnus of Columbia Law School, said the following in a “fireside chat” radio address a month after introducing his now-notorious “Court-packing” plan:
Since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.
In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.
. . . the majority of the Court has been assuming the power to pass on the wisdom of these Acts of the Congress — and to approve or disapprove the public policy written into these laws.
. . . There is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.
. . . The Court . . . has improperly set itself up as a third House of the Congress — a super-legislature, as one of the justices has called it-reading into the Constitution words and implications which are not there, and which were never intended to be there.
We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself.
A month later, the Court bowed to Roosevelt’s public-pressure campaign and began upholding New Deal legislation of the type it had previously held unconstitutional. FDR, unlike most presidents, won his fight with the Court, and he was in office long enough to appoint all nine justices. This is how he built the majority that upheld even his detention of Japanese Americans in 1944, with the last remaining Republican appointee dissenting and resigning from the Court not long after.
In the post-war era, despite a lot of complaints about judicial activism on the campaign trail, presidents have shied away from these kinds of assaults on the Court — until President Obama abruptly changed that. Obama, a onetime president of the Harvard Law Review, set the tone in 2010 by berating the justices to their faces at the State of the Union address over the Citizens United decision. But he didn’t stop by attacking decisions after the fact; he set to the project of jawboning the justices into ruling his way.
‘By far, Obama has set himself apart by opining on the merits of the case after oral arguments have been submitted, and preemptively faulting the justices if they were to rule against the government.’
— Josh Blackman
Professor Josh Blackman has summarized the 47 times between 1953 and 2015 that presidents discussed pending cases before the Court. He concluded: “By far, President Obama has set himself apart by opining on the merits of the case after oral arguments have been submitted, and preemptively faulting the justices if they were to rule against the government.”
In the original Obamacare case, NFIB v. Sebelius, Obama did exactly what Trump is doing in terms of setting up the justices to take the blame for the policy consequences of their decisions. “I think it’s important —because I watched some of the commentary last week,” Obama warned, “to remind people that this is not an abstract argument.”
Blackman recounts what followed:
Putting a face on the argument, so it is not viewed as abstract, the president added, “People’s lives are affected by the lack of availability of health care. . . . The law that’s already in place has already given 2.5 million young people health care that wouldn’t otherwise have it.” He stressed that the “Justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.” . . .
He went even further than his predecessors, and said it would be “unprecedented” for the Court to invalidate the law: “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” The President charged with hypocrisy “conservative commentators that for years” argued that “biggest problem on the bench was judicial activism or a lack of judicial restraint.” The President hoped that “this Court will recognize that and not take that step.”
This went on for a series of statements by Obama, and of course Chief Justice Roberts ended up doing precisely what Obama wanted: Apparently changing course from his original posture on the case, he upheld the individual mandate, concluding that the mandate was a “tax” even though the same opinion had just found that it was not a tax for purposes of the Anti-Injunction Act and even though everyone involved in the ACA’s passage had loudly insisted at the time that it was not a tax and the solicitor general had also argued that it was not a tax. When the next Obamacare case, King v. Burwell, came up, Obama went back to the well: “Frankly, it probably shouldn’t even have been taken up.”
In other words, the President’s faults the Court – or at least 4 justices – for voting to grant certiorari. He then turned to the real-world consequences of basing the decision on “a contorted reading of the statute. . . . It means that millions of people who are obtaining insurance currently with subsidies suddenly aren’t getting those subsidies; many of them can’t afford it; they pull out.” Making the point clearly, he said invalidating the IRS Rule is “a bad idea. It’s not something that should be done based on a twisted interpretation of four words” in a 2,000-page statute. Driving the point home after a question of what his “Plan B” is if he loses, the President said, “If somebody does something that doesn’t make any sense, then it’s hard to fix.” At this point, the “somebody” could only refer to the justices voting to invalidate the rule. He concluded that he was “optimistic that the Supreme Court will play it straight when it comes to the interpretation.” Presumably, a ruling invalidating the IRS would not be straight, but crooked.
The very next day the President spoke at length about the Affordable Care Act, in a speech before the Catholic Health Association Conference. Although he did not discuss King v. Burwell directly, he alluded to the pending decision: “It seems so cynical to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America. And that kind of cynicism flies in the face of our history.”
Once again, the Court bent to the president’s will, upholding an IRS reading of the law that the IRS had explicitly stated it was adopting “regardless” of what the law said. The result was, if anything, even more nakedly political and contrary to settled principles of how to read written texts than NFIB had been. But Obama got what he wanted, and that’s all the legitimacy that matters in Washington, where power is the only currency that counts.
Pay No Attention to the Man behind the Curtain
Then we had Obergefell, a decision that threw out the legal definition of marriage that had existed uniformly throughout American history, purportedly on the basis of the due-process clause of the 14th Amendment. The justices did not make even a cursory effort to convince anyone that this was part of the written law adopted by the people who amended the Constitution in 1868 to say, “No state shall . . . deprive any person of life, liberty, or property, without due process of law.” Even if you liked the result, Obergefell had nothing to do with due process. It was simply an exercise of raw judicial power to substitute five justices’ view of human “dignity” for the deliberate results of democracy, tradition, and federalism embodied in the rule of written law.
Obergefell was not the first time the Court had done something like this — Roe v. Wade being the most notorious contemporary example of a rule with no basis in written law whatsoever — but it thrust into sharp, visible relief the Court’s unbounded power to overrule written law, and it led predictably to further public contempt for the courts. That contempt for the idea of judicial independence was implicitly shared by everyone who posted the famous “equals sign” on their Facebook and Twitter profiles, and everyone who protested and marched and cheered the decision — all of it an implicit acknowledgement that the Court’s decision should be the result of public pressures rather than the reading of written law enacted through the democratic process.
The justices brought this contempt on themselves. As Justice Scalia wrote in 1992, after the Court upheld Roe:
I am as distressed as the Court is . . . about the “political pressure” directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” . . . which turns out to be nothing but philosophical predilection and moral intuition . . .
What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here — reading text and discerning our society’s traditional understanding of that text — the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments . . . then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school — maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.
Democrats, of course, believe deeply that Scalia was right. Since the Bork hearings in 1987, they have pursued one scorched-earth public campaign after another demonizing sitting federal judges who were up for the Supreme Court, almost invariably on the grounds that they ought to reach policy results the Democrats favor. Here is Nancy Pelosi less than two weeks ago, talking about Tenth Circuit Judge Neil Gorsuch, currently nominated to the Supreme Court:
He’s come down against employees’ rights, clean air, clean water, food safety, safety in medicine, and the rest. If you care about that for your children, he’s not your guy. Gabby Gifford’s group, the group for responsible solutions relating to gun safety, said that he comes down on the side of felons over gun safety. . . . What saddens me the most as a mom and a grandmother, though, is his hostility toward children in school, children with autism. . . . As far as your family is concerned, if you breathe air, drink water, eat food, take medicine, or in any other way interact with the courts, this is a very bad decision.
And a number of Democrats and liberal commentators have already preemptively set out to characterize Gorsuch as a so-called Supreme Court justice; Senator Jeff Merkley referred to “a stolen seat being filled by an illegitimate and extreme nominee,” and University of Chicago law professor Geoffrey Stone wrote that if Gorsuch is confirmed, “every decision of the Court decided by a margin of five-to-four with Neil Gorsuch in the majority will justifiably be castigated as fundamentally illegitimate.”
Now Who’s Being Naïve?
That brings us to Trump, who has a long rap sheet of complaining publicly about the judges overseeing cases he cares about, most notoriously his baseless “he is Hispanic” assault on Judge Curiel, the judge hearing one of the primary Trump University lawsuits. Trump is a man who has spent his whole life in business deals where everything is negotiable and renegotiable and lawyers are just people you send in to clean up the details once you’ve extracted your agreements.
His worldview, unsurprisingly, seems to be an extremely cynical one in which everyone is out to get what they can, everyone has an agenda, and everyone can be bought at the right price. Judges? Just more political actors in robes, and you need to find their pressure points as you would with anyone else across the table. That worldview is just as evident in Trump’s answer to Bill O’Reilly about Vladimir Putin being a killer: “There are a lot of killers. You think our country’s so innocent?” It’s the answer of Michael Corleone, whom we watch buy, sell, and blackmail senators and anyone else in his way:
Michael: My father is no different than any powerful man, any man with power, like a president or senator.
Kay Adams: Do you know how naïve you sound, Michael? Presidents and senators don’t have men killed.
Michael: Oh. Who’s being naïve, Kay?
An independent judiciary that upholds the rule of written law without fear of political criticism doesn’t deserve the sort of shabby, cynical treatment that Trump offers. And Trump doesn’t even offer Obama’s pretense of couching the threats in a scholarly, lecturing tone. But is an independent judiciary what we actually have? If it were, Obama would not have chosen the path he chose, and voters who prize control of the courts and dislike the outcomes Obama obtained would not have flocked to a man as obviously contemptuous of the rule of law as Trump.
No Checks, No Balance
If the judiciary falls short of its duty to abide by written law, what else remains to the voters as a remedy? The Founding Fathers thought the courts would be kept in line by the political branches. Hamilton wrote in Federalist No. 81:
The supposed danger of judiciary encroachments on the legislative authority . . . is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. . . . The inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.
As it turned out, no federal judge has ever been removed from office for overstepping the rule of law, absent corruption, bribery or treason. Today, the legal profession and the political branches alike have developed a powerful norm against even suggesting that Hamilton’s safeguard against judicial overreaching should be used. And even Trump is meekly abiding by Judge Robart’s national restraining order. That leaves only the comparatively tepid remedy of public criticism, transparently toothless as it is.
Most federal judges don’t interact much with the kinds of people who voted for Trump, and they don’t fear alienating them.
And criticism is far more toothless coming from Trump. Trump’s comments are likely to be a lot less effective than Obama’s in swaying the courts to his favor, because Obama was appealing to people whose good opinion the judges value, and Trump is not. Most federal judges don’t interact much with the kinds of people who voted for Trump, and they don’t fear alienating them. To the contrary, standing up to Trump will win you awards at the next bar association dinner. But standing against the abuse of Obama would have required genuine courage, because Obama had behind him the opinion of the majority of the legal professional and academic elite, and that’s far more important to judges than the opinions of the common folk. And that’s an even more alarming reality to contemplate, because rule by a professional elite lacks even the brute majoritarianism of rule by a mob.
The solemn duty of the federal courts — the reason we give them life tenure — is to interpret the law as originally written, without fear or favor or concern for outside political pressure. Politicians like Trump and Obama who seek to undermine that independence with public campaigns against the courts in pending litigation are acting improperly. Judge Gorsuch has told Democratic senators that comments like Trump’s are “disheartening” and “demoralizing,” and he’s right. But our system has freed the courts from any accountability for abusing their power and disregarding written law. They have too often invited contempt, and now they face a president who doesn’t understand why they shouldn’t receive it. That’s a tragedy for all of us.
— Dan McLaughlin is an attorney in New York City and an NRO contributing columnist.