The leaders of two of the three branches of our federal government are fighting. Let that sink in for a moment. The president of the United States and the chief justice of the United States are battling over the very essence of our democracy.
President Donald Trump is continuing a months-long campaign to undermine the judiciary, and particularly those judges who strike down his administration’s policies. Trump is doing his best to portray judges as nothing more than politicians in robes who have partisan agendas. Chief Justice John Roberts is continuing his quest to explain to the public that judges are neutral arbiters who apply the facts of each case to the law without preconceived notions and political biases. And they are both right.
Presidents have certainly criticized federal judges and even Supreme Court decisions. Recall President Barack Obama’s famous condemnation of the Supreme Court’s Citizens United decision during his 2010 State of the Union address. But Trump’s criticism of the federal judiciary goes far beyond what we have seen in modern presidential history, and seems to seek to undermine our respect for that branch of government.
Trump’s criticism of the federal judiciary goes far beyond what we have seen in modern presidential history, and seems to seek to undermine our respect for that branch of government.
Trump once criticized a federal judge who issued a ruling striking down a version of the administration’s travel ban and called him a “so-called” judge. When he was a candidate, Trump accused a federal judge of Mexican descent of being biased against him and incapable of performing his job because his parents were immigrants.
This week, while lamenting a decision made by a Ninth Circuit judge appointed by Obama, and more generally criticizing the entire circuit, Trump said, “That’s not law… Every case that gets filed in the Ninth Circuit we get beaten. It’s a disgrace.” But of course, that is exactly how the judiciary is meant to function. Trump is describing a ruling as “law” only when the judge rules in favor of his administration, and a “disgrace,” when the judge rules against his administration. But judges fulfill their duties when they apply the law of each individual case to the applicable law, not when they ensure that a certain presidential administration is victorious in court.
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Trump’s comments were apparently the last straw for Roberts — nominated by President George W. Bush and confirmed in 2005 with established conservative leanings — who has previously stayed silent during all of Trump’s previous criticisms of the judiciary. Roberts responded: “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.”
This is consistent with Roberts’ desire to ensure that the public respects the judiciary and understands it as an entity separate and apart from partisan politics. Just last month, in the wake of the contentious hearings concerning now-Justice Brett Kavanaugh, Roberts stated “we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.”
Like every schoolyard bully, Trump felt compelled to respond to Roberts’ most recent comments. Trump 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.”
But despite all of his outright lies and misunderstandings, Trump has a point. It is increasingly the case that if we look at any of the big, hot button cases that will come before the Supreme Court, we can predict how the justices will rule based on whether they were nominated by a Republican president or a Democratic president. Look at affirmative action, LGBT rights, religious rights, or voting rights — we essentially know how the justices will vote based on the partisan affiliation of the president who nominated them.
This was not always true. Republican presidents nominated a number of justices who either sometimes or routinely voted with the liberal side of the court. Here’s looking at you, Justices Earl Warren, William Brennan, Henry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy and David Souter.
But federal judges are hatched via a political process. They are nominated by the president and confirmed by the senate. It’s irrational to pretend that they do not have partisan affiliations. And as our politics becomes more polarized, so do the judges who are born out of our political process. That does not have to mean judges make decisions in order to reach a certain policy outcome. Instead, judges do, or should, adhere to a certain judicial perspective and not a political one.
Trump often conflates judicial philosophy with political philosophy. A conservative judge is, or should be, someone who believes the Constitution should be understood according to what the Framers of the document believed at the time of its drafting. This is done regardless of whether doing so would lead to a decision that benefits Republicans. A liberal judge is, or should be, someone who believes the Constitution is a living document and can be interpreted according to modern understandings and ideals. Again, the liberal judge’s goal is to apply the facts of the case to the law under that judge’s judicial philosophy regardless of whether her or his decision would help Democrats.
Federal judges are hatched via a political process. They are nominated by the president and confirmed by the senate. It’s irrational to pretend that they do not have partisan affiliations.
But, again, as our politics get more polarized, so to do our judicial nominees. Remember Judge Merrick Garland? Obama nominated him to fill a vacancy left by the death of Justice Antonin Scalia. But Senate Majority Leader Mitch McConnell denied Garland a hearing before the senate. McConnell was betting on the fact that Trump would win the presidency and be able to fill that seat with a more conservative judge. McConnell orchestrated one of the most unconscionable political maneuvers in modern history, and it paid off. Justice Neil Gorsuch now occupies that seat. There is little chance that Gorsuch will ever reliably vote with the liberal wing of the court.
And that is exactly why Trump’s pronouncements about the federal judiciary could become a self-fulfilling prophesy. Trump has ushered in an era of vitriolic partisanship that is arguably worse than anything we have seen in our country. He has run on ensuring that not just politicians, but also judges, are seen as with him or against him. And he has been effective nominating and confirming federal judges. If, and this is a big if, these judges adhere to the worldview of Trump, they will not just be conservative jurists, they will always have an eye out for rulings that benefit conservative Republicans. From here, it is just a hop, skip and a jump to a constitutional crisis.
The judiciary does not have a military force to enforce its decisions. The judiciary only has the power of the pen — and a collective pact to respect its rulings. Part of the reason Trump’s comments are dangerous is that, taken to their logical conclusion, they undermine the legitimacy of the judicial branch. If judges are seen as simple political hacks, there is little reason to treat their decisions as warranting our respect and adherence.
And voila, we have a constitutional crisis because we no longer have a functioning judiciary. This is precisely what Roberts is trying to guard against, and precisely why he chose to speak out when he did. There is little question that Trump will continue his attacks. But there is a question about how the American public will react to those attacks. This is a government of checks and balances — if one of those checks fail, it is up to the other balances — and notably voters — to ensure that the entire system does not collapse.