President Donald Trump’s oral (and viral) argument with Chief Justice John Roberts over the Thanksgiving holiday was like many Trumpian misadventures in creating an exaggerated sense of Trump’s uniqueness.
What is undeniably unprecedented about this president — his coarseness and carelessness, his tireless and tiresome bullying demeanor — often obscures the reality that some of the things he gets agitated about are real issues that have been agitating presidents since the nation’s founding.
And at the same time, Trump’s ill-mannered extravagance often conceals the ways he is a typical creature of his era, overdramatizing all-too-routine political pathologies that belong especially to our times.
Last month the president bluntly demeaned the integrity of federal judges (not for the first time), dismissing an immigration ruling that went against him as the biased work of an “Obama judge” and attacking the “disgraceful” 9th Circuit Court of Appeals, where many cases against his policies have been filed, because the panel is “not fair” and delivers his administration an “automatic loss.” Trump boasted: “It’s not gonna happen this way anymore,” threatening vaguely to “take a look at” that meddlesome court.
Chief Justice Roberts pushed back (for the first time). “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts declared, but only “ … 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.”
Trump, of course, didn’t leave it there but denounced judges who “have a much different point of view than the people who are charged with the safety of our country.”
Roberts’ rejoinder has been widely labeled a “rare rebuke” to Trump’s “tirades.” But setting aside the president’s bluster and air of open disrespect, many have admitted that complaints about misguided courts are far from unusual in America today.
They are, in fact, as old as the republic.
One of America’s greatest presidents, Thomas Jefferson, cordially detested its greatest chief justice, John Marshall (Jefferson’s cousin). Marshall prevailed in many of their more direct conflicts, including the famed case of Marbury vs Madison, in which the chief justice established the doctrine that the Supreme Court is the last word on whether a law is constitutional.
Jefferson thought such “judicial supremacy” made the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please … ”
Many critics of “activist” judging have agreed ever since.
Marshall was still on the bench decades later to irritate another powerful president, Andrew Jackson, who is supposed defiantly to have said, “John Marshall has made his decision, now let him enforce it,” when Marshall’s court ruled that state governments had no authority over American Indian affairs.
No president defied the high court more boldly than Abraham Lincoln, who ignored Chief Justice Roger Taney’s ruling that Lincoln had unconstitutionally suspended the writ of habeas corpus without congressional approval to allow Civil War agitators’ arrests.
“Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?” Lincoln protested. (He apparently thought judges in his day sometimes had a “different point of view than the people who are charged with the safety of our country.”)
Lincoln shared Jefferson’s view that universal judicial supremacy was a faulty principle. Court decisions properly resolve the controversies between particular persons who come before judges, Lincoln believed, but beyond those specific disputes it was up to each independent branch of government to decide, in exercising its own powers, what the Constitution and the laws meant.
That view has long since fallen from favor, of course. But yet another great president, Franklin Roosevelt, tried to “take a look” at a way to neutralize an uncooperative judiciary when he proposed his unsuccessful “court packing” scheme in 1937 to outnumber conservative Supreme Court justices who were interfering with his New Deal economic legislation.
Yet if it’s clear that presidents have questioned the power of courts and clashed with judges throughout American history — recall Barack Obama’s public scolding of the Supreme Court over the Citizens United ruling in his 2010 State of the Union address — still, there’s no denying that contempt of courts has reached a troubling new intensity in America in recent years. Trump’s lack of normal rhetorical boundaries is part of it — but respect for the rule of law and the separation of powers isn’t merely a matter of more courteous language.
Relentless allegations of bias, favoritism and ideological allegiances among judges and judicial nominees pour forth from politicians today. Former Minnesota U.S. Sen. Al Franken made a name for himself with this kind of rhetoric, opposing the elevation of respected Minnesota Supreme Court Justice David Stras because Stras would “embrace the legacy of his role models and reliably … place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box.” After all, in Franken’s view, “the activism of the Roberts Court … has cut in only one direction: in favor of powerful corporate interests, and against the rights of individual Americans …”
Not long ago, politicians including presidential candidates, in both parties, rejected any idea of applying “litmus tests” to judicial candidates and demanding pledges to rule a certain way on specific controversies. In more recent years, those restraints have collapsed.
Of course, politicians always have and always will try to fill the courts with like-minded judges — because, of course, judges have philosophies that affect how they see particular controversies. And as Justice Roberts surely knows, judges don’t always demonstrate the restraint and impartiality that alone make a judiciary “independent” of politics a blessing to be thankful for.
That said, on many, most, cases, American judges demonstrably do seek to “do equal right to those appearing before them” and to impartially apply, not rewrite, the law. A rhetorical atmosphere in which this is constantly denied — in which citizens are told there exists no impartial justice — is poisonous to democracy.
In this as in many regrettable modern tendencies, Trump is an exaggerated expression of the spirit of his age. We could do without that exaggeration — but without that spirit, too.
D.J. Tice is at Doug.Tice@startribune.com.