Trump and The Courts: Presidential Attacks On The Courts Have A Long History

donald_trump_president-elect_portrait_croppedSupreme CourtBelow 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.”

PresObamaWhile 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.

official_presidential_portrait_of_thomas_jefferson_by_rembrandt_peale_1800For example, that parag440px-john_marshall_by_henry_inman_1832on 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.

jackson-senateOf 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.”

225px-fdr_in_1933Of 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.”

245px-Abraham_Lincoln_head_on_shoulders_photo_portraitIndeed, 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.

142 thoughts on “Trump and The Courts: Presidential Attacks On The Courts Have A Long History”

    1. “Russia did not rig the election. What Russia did was expose the primary rigging by the DNC and the Hillary Clinton campaign. That ain’t the same thing! The person who tells on you cheating is not the same thing as rigging it!” – Tim Black show

      Right on. But this is all we are going to hear coming from the DNC because they got caught and they lost and they’ve got nothing else. Obama’s intelligence people were supposedly investigating the Russian hacking long before the election and they have come up with nothing. The only thing Obama did was sanction Russia.

      1. Bob, thang is NOT nobody sane listening to the MSM and Dem propaganda outlets — EXCEPT the die hard Dim cult members who will continue to protest for nothing issues and send monies. Obama’s “russian sanction” was a joke. IF those diplo people had been spies why wait til then to get rid of ’em? It was an empty theatrical gesture and Putin didn’t take the bait by throwing out US diplos in Russia. Any halfway intelligent person realizes that much of embassy staff are spies – that’s alway been the norm. I think Obama is going to go down as one of the worst presidents in history. So charming yet so ineffective for the ordinary people who enthusiastically voted him in. A successful corporatist for sure.

      2. There is NO hard evidence that Russia was even involved in exposing the DNC’s rigging of the Primary campaign against Sanders. It is more likely that was an internal leak.

        Of course it IS particularly telling that the DNC and Obama and the intelligence agencies, not to mention the MSM, would howl at the top of their lungs about what a heavy blow to our Democracy is suffered by virtue of Russia TELLING THE TRUTH. The veracity of those “hacked” emails has never been denied. OMG, we’re doomed, 250 years of Democracy!, Russia’s telling the truth!!

  1. Anon,

    So, you don’t think Obama lied, you don’t think he adored campaigning but not governing, you don’t think he was an egotist, or that he was a vicious attack dog or that he adored the adoration of the crowds or that he put his own interests over that of his country. Your sole argument that Trump and Obama have different personalities is that you claim Trump was a sexual abuser and Obama was not. I truly don’t know your definition of sex abuser or your evidence to support that claim, but if you are referring to the NYT article, the woman in question denied saying what the NYT claimed she said. It’s called fake news. Watch the award’s show tonight and see more.

  2. Sen. McCain knows something that is secret (meaning he can not reveal it) which he is about to reveal. He wants to go to war against ISIS.

      1. Don’t count Perez out for sure. The son of immigrants from the Dominican Republic might yet prove to be a decent foil for Trump’s Goldman Government and his over eager weaponized ICE agents. He is not ideal but time will tell. C’mon not everyone wants coal sludge in their water or trans people to be abused.

        1. The soul of the Democrat party is dead. They no longer even pretend it has any relevance. They are for TPP (now TISA – Trade In Service Agreement), for NAFTA, for Wall St. for Bankers. Watch Autumn’s video.

          Perez is utterly beside the point. Obama and Hillary put him in out of spite, the other joker wouldn’t have been any better. The party is run by people who have absolutely zero interest in the American people unless they are part of the .01%. Their mission isn’t even to get elected, it’s simply to make sure Leftists such as Bernie Sanders DON’T get elected.

          That is a dead party. Holdouts will be dropping off it over the next couple of years like flies that can’t find even any traces of life left to suck on.

          1. Conventional wisdom claimed that the nomination of Trump would kill the Republican Party and now Mitch and Paul with their slash and burn ways are riding high so one never knows. I have given up predicting but there is a lot of energy around due to Trump. Maybe a new leftist party can capture it. We shall see.

          2. I agree. The factors stated are accurate. I also think that the Republican Party will morph into a different animal.

  3. This just in from Cloud 9 on uncoded email from a national defense agency: “John McCain has been diagnosed with a mental illness described as PTSD dementia.”
    The problem with that is that the two do not go together or one does not cause the other but both can be in the same brain at the same time. I think he is 80 or 81 years old.

        1. As usual with the Dems it’s all about the donors – who cares they keep digging a deeper hole and further alienating constituents?

          from Glenn Greenwald “Key Question About DNC Race: Why Did Obama White House Recruit Perez to Run Against Ellison?”

          “Just over two weeks after Ellison announced, the largest single funder of both the Democratic Party and the Clinton campaign — the Israeli-American billionaire Haim Saban — launched an incredibly toxic attack on Ellison, designed to signal his veto.”

          1. Oh, surely you jest, Autumn. You mean it’s all about money? That is a cynical view of the matter. What about the honor, the integrity, and the well-grounded principles of human decency that comprise the very essence of the DNC today?

  4. I think Lincoln won the in re: Merryman fight. He ignored Taney’s decision and Congress passed a law authorizing everything Lincoln did in suspending habeas corpus. Taney was threatened with imprisonment and Lincoln won the war. Point to Lincoln.

    1. Make that Ex Parte Merryman. It’s fascinating history and a case study of law yielding to national interests in time of war.
      Silent enim leges inter arma!
      ~Marcus Tullius Cicero

        1. Head on over to Syria or Iraq or Yemen or Turkey or France or Belgium or Sweden or Italy and out from behind your Uncle Sam’s shadow and see how the world really is. You’ll understand that war or oppression is the natural state of man except where Western values prevail.

          1. Taiwan, Japan, South Korea, and Singapore do all right. So does Malaysia. Indonesia has had severe bouts of political violence in circumscribed time periods (1945-49, 1965-67) or circumscribed loci (Timor), but it hasn’t done badly since 1967. India is poor, but it has a durable set of political institutions and has suffered notable political violence only on the periphery and does not have particularly elevated crime rates, either.

              1. The ‘protected’ makes no difference (and, as we speak, there are American garrisons only in Japan).

                As for ‘influenced’, all countries the world over are ‘western-influenced’. The label hardly differentiates one place from another.

              1. Better that we are able to laugh at ourselves…, lest we never cease to be amused — as the saying goes.

                Nonsensical responses are laughable, too.

          2. “Head on over to Syria or Iraq or Yemen or Turkey or France or Belgium or Sweden or Italy and out from behind your Uncle Sam’s shadow and see how the world really is. You’ll understand that war or oppression is the natural state of man except where Western values prevail.” –mespo727272

            Per usual, you’re making unfounded assumptions, with limited knowledge.

  5. Autumn, The entrenched, elitists, old, has beens, establishment are driving the once honorable and powerful Dem party off a cliff. The Dems are numerically[not opinion..FACT] at their lowest point in over a century. And, they may even lose ground in the Senate in an off year election! Unprecedented. My loyal Dem old man saw this coming back in the 70’s.

    1. Very true Nick. Loyal base continues to be blind. They refuse to realize that the Dems are most certainly not the party of the people – putting Perez in was the final nail IMO because no Indies are going to vote for which ever corrupt candidate they run in 2020. Tulsi Gabbard is despised by the Establishment.

      1. There is no party of the people currently but there is an organic movement that is in opposition to Bannon Trump Gorka and all that they stand for. Gorka is a well known anti-semite.

          1. Anon, that article is a typical leftist fake news lamestream media presstitute. Many of the other leftist fake news lamestream media presstitute outlets are pushing the same lies, like DailyKos, Salon, the Daily Beast, New York Magazine, Raw Story, and other such sites that can be relied upon to lie on just about everything and anything, Curiously, the New York Times, arguably the most “prestigious” of the leftist fake news lamestream media presstitute outlets, hasn’t joined this particular lie. I’d give them time.

            This fake news leftist propaganda piece on Sebastian Gorka was created in the mold of the leftist presstitute’s hero, Paul Joseph Goebbels, who theorized that the bigger the lies and the more they are repeated, the more they will be believed. Although Goebbel’s theory of propaganda has been challenged because there is ample evidence that many big lies have not been accepted as true by many people, Goebbel’s theory has since been refined by sociopsychologists to recognize that Goebbels theory is valid if the population it is applied to is sufficently loaded with dupes and dopes.

            Studies show that roughly half of the US population consists of dupes and dopes.

            However, if you’re truly interested in the truth about Sebastian Gorka, you have to go outside the fake news lamestream media presstitutes–something you’re probably unwilling to do, given that you seem to be a programmed automaton of the type that Goebbels loved.

            Here is a genuine news analysis of the purported “evidence” used to attempt to transform Sebastian Gorka into an anti-Semite via pressitute lies:


            The leftist fake news lamestream media presstitutes tried their usual Goebbel’s tactic to do the same thing to Steve Bannon and failed miserably, so that even the dopes and dupes are starting to understand the truth, as difficult and challenging as that is for them to do,

              1. Anon, Garry Kasparov is a great chess player. But that doesn’t mean that he is an intellectual or that he has any other skills, including comprehension and interpretations of events around him that have nothing to do with chess. The very opposite is true.

                Bobby Fischer–a deluded, paranoid kook–is a perfect example of that. Another is Alexander Alekhine, a heavy-drinking Russian chess master, nicknamed “Ale-and-Wine.” He reportedly urinated on the floor during matches. Then, consider Paul Morphy, the first chess figure to make a commercial endorsement. A 19th-century U.S. chess master, Morphy not only had a persecution complex but also harbored a fetish for women’s shoes.

                Although you’ve been a leftist tool for so long that you probably are incapable of any genuine understanding or reasoning, perhaps you will grasp my point when I present it on a more obvious level. Take Itzhak Perlman, one of the greatest living violinists. Yet, depsite Perlman’s skills on the violin, he is simply terrible at baseball. Mike Trout of the Los Angeles Angels is one of the greatest baseball players today, yet he’s just awful on the violin. Kasparaov is lousy at baseball and he’s a terrible on the violin. Are you grasping my point yet? But you, nonetheless, make the leap: Kasparov = great chess player; ergo, Kasparov = expert on journalism. According to you, would a truly fantastic journalist automatically be one of the greatest chess players as well? I rest my case.

                But let us dissect your lack of understanding of reality and expose it. You probably believe that Donald Trump mocked disabled people, don’t you? Of course you do. You’ve been spoon-fed that lie by the fake news lamestream media presstitutes, and you swallow the lies hook-line-and-sinker, like the obedient dupe you’ve been programmed by the left to be. Of course you don’t believe that you’re programmed to believe lies. You believe that you are actually “thinking” and “reasoning.” But you’re wrong. You’ve merely been duped into believing lies, because you’ve been successfully programmed to accept whatever lies are delivered to you by the leftist lamestream media presstitutes.

                But if you are truly interested in the truth about the fake news story that the leftist lamestream media presstitutes created to attempt to smear Trump as a mocker of the disabled, please see the following video, where the entire matter is explored in depth. But I doubt you will. You’ve been programmed by the left so well, that as soon as you are presented with the truth, your mind automatically shuts down and blocks it out.

                  1. Kasparov know little to nothing about fake news and how the lamestream media presstitutes are operating today. But to your false narrative and fake news about Sebastian Gorka, here is Gorka himself speaking about his father’s medal that has been the subject of the lies about him. Can you find a lamestream media presstitute outlet that addresses Gorka’s own discussion of the medal? Of course you can’t. That would force them to deal with facts, which the lamestream media presstitutes hate with a passion.

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