Below is my column in USA Today on the continuing controversy over President Trump’s attack on judges who have ruled against his executive orders. I have been critical of Trump’s attacks on the media and the courts, which undermine not just those critical institutions but the White House itself. As discussed below, presidents have learned that attacking the courts tend to diminish their own credibility over time. Having said that, Trump is not as much as a departure from other presidents as some have made out. Indeed, public discord between the executive and judicial branches has a long history in our country. Of course that is no license to continue a bad practice and most modern presidents have avoided direct personal attacks on judges and justices. Most importantly, the criticism of the judges in the Ninth Circuit in my view are unwarranted and unhelpful. The executive order on immigration was, as I have previously stated, poorly drafted, poorly executed and poorly defended. The law favored the President and still does. Yet, through remarkably causal drafting, the Administration gave judges a target rich environment in the first executive order. While I disagree with fundamental parts of these opinions, the result had more to do with the sloppy drafting of the order than any bias of the judges.
Here is the column.
When President Trump called Senior District Court Judge James Robart “this so-called judge” after the issuance of an order temporarily restraining Trump’s executive order on immigration, the response from all sides of the political spectrum was immediate and alarmed. It was called “bone-chilling” and “authoritarian.” Some even compared Trump to Hitler.
However, it was not only relatively mild for Trump but positively tame in comparison with past conflicts between presidents and judges. Even so, Trump might want to consider history before he follows the lead of his judge-trashing predecessors. Article III, the part of the Constitution that gives judges their power, is designed for days (and presidents) like this. It is why presidents have largely found that attacking judges did more to destroy their own credibility than that of their judicial antagonists.
Undeterred by the firestorm over his criticism of Robart, Trump then attacked the three-judge appellate panel after the 9th Circuit hearing as “disgraceful” and described the hearing a “sad day” for the United States. In a particularly curious distinction, Trump added, “I won’t say the court was biased. But so political.”
While these comments were unfounded and decidedly unhelpful to the government case, they are not necessarily outside of the norm for presidents in criticizing judges. In 2010, President Obama criticized the justices sitting in front of him at the State of the Union for their ruling in Citizens United v. Federal Election Commission.
At the start of the republic, most judges were highly political — often moving freely between political and judicial offices. Presidents saw justices particularly as political threats, and they were.
The first chief justice, John Jay, ran for elected office twice while keeping his seat on the Supreme Court and left in 1795 to become the governor of New York. John Marshall openly opposed Andrew Jackson for the presidency. Charles Evans Hugheschallenged Woodrow Wilson in 1916 and then returned to the court in 1930.
Modern justices have largely (and wisely) set aside such ambitions, but our history is replete with bare-knuckled fights between presidents and their judicial antagonists.
For example, that paragon of U.S. democracy, Thomas Jefferson, and Chief Justice Marshall wholeheartedly disliked each other despite being third cousins once removed. Marshall expressed “almost insuperable objection” to Jefferson as “totally unfit for the chief magistracy of a nation which cannot indulge these prejudices without sustaining deep personal injury.” Jefferson referred to Marshall as a man of “lax lounging manners … and a profound hypocrisy.” Jefferson viewed Marshall as a Federalist hack, particularly after his decision on the right of Congress to charter the Bank of the United States in McCulloch v. Maryland.
Of course, the most infamous attack of a president on the authority of the judiciary is attributed to Andrew Jackson. After Marshall’s ruling against the right of Georgia to restrict the Cherokee in Worcester v. Georgia, New York Tribune editor Horace Greeley quoted Jackson as saying, “Marshall has made his decision, now let him enforce it.”
Like Trump, Jackson might have been the victim of his own reputation. In reality, there is no evidence that Jackson uttered those words. He did, however, question the decision in a letter: “The decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” In reality, Jackson was right. There was little the Supreme Court could do, and Georgia largely ignored the decision.
Abraham Lincoln also did not hide his contempt for Chief Justice Roger Taney after his infamous ruling in Dred Scott v. Sandford supporting slave owners. Not only did Lincoln criticize Taney on the campaign trail, he did so at his first inauguration. Before Taney gave him the oath of office, Lincoln proceeded to eviscerate the decision with Taney sitting like an errant child behind him as Lincoln decried the opinion as “erroneous” in its reasoning and “evil” in its impact.
Other presidents took a more personal tack. After Theodore Roosevelt’s nominee to the court, Oliver Wendell Holmes, ruled in Northern Securities Co. v. United States in favor of a railroad, a furious Roosevelt declared, “I could carve out of a banana a judge with more backbone than that.” Dwight Eisenhower attacked his nominee, Chief Justice Earl Warren, as the “biggest damn fool mistake I ever made.”
Of course, Franklin Delano Roosevelt had not one but four justices who drove him to distraction in their invalidation of his New Deal measures. The “Four Horsemen” — Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter — stood between him and his effort to address the Great Depression. Just as Trump goes to Twitter, Roosevelt went to the newest technology of his time to speak directly to the public: radio. In his “fireside chat” March 9, 1937, he called for the expansion of the court by one new justice for every justice older than 70 (a clear reference to the gray-haired horsemen). Roosevelt lamented how such old justices are often “not so fortunate … to perceive their own infirmities.” His court-packing plan would ultimately die with the switch of Justice Owen Roberts in favor of a New Deal case — a move later characterized as “a switch in time saves nine.”
While often cited as an example of how presidents can influence rulings of the court, there is little evidence of that causal connection. The Horsemen remained opposed to Roosevelt’s actions, and it does not appear that Roberts was influenced by Roosevelt’s threat (his votes seem to have changed before the announcement of the plan).
Presidential threats have proved to have little impact on federal judges who were given life tenure by the Framers, specifically to insulate them from public pressures and attacks. Writing under the pseudonym of Publius, Alexander Hamilton explained, “This independence of the judges is … to guard the Constitution and the rights of individuals from the effects of those ill humors.”
Indeed, Lincoln learned after his inauguration that it is futile to fight with people who ultimately decide what the law means. Taney proved the latter rule shortly afterward in his ruling in Ex parte Merryman that Lincoln violated the Constitution by suspending habeas corpus (a power reserved to Congress).
The courts and the presidency developed certain rules of engagement that have served both well. Judges learned to stay out of politics, while presidents learned to avoid personal attacks on judges.
If Trump continues his battles with judges, he could still prevail, but he should always remember that judges get the last word, even if he thinks they are wrong. As Justice Robert H. Jackson wrote in a 1953 Supreme Court decision, “We are not final because we are infallible, but we are infallible only because we are final.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.