“Who will judge the judges?” Photo: Win McNamee/Getty Images
Federal judges get things wrong. If everyone in American politics can agree on anything, it’s that. Sure, Bernie Sanders resents judges for finding that corporations are people, while Louie Gohmert resents them for inviting God to rain hell on our modern-day Gomorrah — but both agree that judicial wisdom is not infallible.
Nonetheless, when Barack Obama revealed that he held this all-but-universal opinion, by criticizing the Citizens United decision in his 2010 State of the Union, conservatives were scandalized. And not entirely without reason: The quickest path to a constitutional crisis is a rift between the Executive branch and the Judicial, so we generally expect our president and Supreme Court justices to play nice.
Obama acknowledged this norm in his carefully worded rebuke.
“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” the president said. “And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.”
Obama prefaced his remarks with a nod to the legitimacy of the court’s power, and then called on legislators to pass reforms that might mitigate the substantive harms of the Citizens United ruling.
In his first run-in with the law, our new president has taken a different approach.
Donald Trump spent much of his presidential campaign promising to use executive power to discriminate against Muslims. Upon election, he promptly banned immigration from several Muslim-majority nations, via an executive order that was Breitbart-tested but not cabinet-agency-approved.
This led to chaos at airports, on-the-fly revisions to the government’s interpretation of its own order, and a bevy of legal rebukes.
Last week, judges in New York, Massachusetts, Virginia, and California stayed the order — or aspects of it — on a variety of legal grounds. Then, on Friday night, U.S. District Judge James Robart delivered the body blow.
Unlike other plaintiffs, the state of Washington did not challenge discrete provisions of the executive order, or merely the process by which it was implemented. Rather, the state argued that the order was in fundamental tensions with both federal law and the Constitution. Robart ruled that Washington’s argument was likely to succeed on the merits — and ordered a halt to nationwide enforcement of the travel ban.
In his response to the ruling, the president did not preface his displeasure with a hat-tip to the separation of powers.
It was more than a little disconcerting to see the president frame judicial independence as a threat to law and order, while questioning the legitimacy of a dissenting judge’s claim to legal authority. But, at least, Trump’s outrage was focused on a single judge and judicial opinion. Further, the president suggested that he would seek vindication through proper legal channels.
But hours later, Trump upped the ante — framing the existence of judicial review as a sign of national decline.
Still, superficially, Trump’s complaint was with an individual judge, not the Judicial branch, itself. But then the Ninth Circuit Court of Appeals rejected the White House’s request for an emergency stay of Robart’s decision — and the president made his contempt for the courts explicit.
Six years ago, the president expressing dismay over the consequences of a Supreme Court decision — while stipulating his respect for the ruling’s legitimacy — was treated as cause for concern.
Imagine if Obama had instructed the American people to blame the next financial crisis on “the court system” — since it had allowed bad campaign donations to come “pouring in.” There is no doubt that such a statement would have made for front-page news and talk of impeachment.
But we have already become so desensitized to our new president’s 140-character authoritarianism, the fact that Trump characterized the “court system” as a national-security threat did not qualify as headline news Monday morning.
We should not gloss over this. This was not merely an intemperate tweet. It was the president instructing the American people to view the next terrorist attack on U.S. soil as an indictment of the judiciary. And it isn’t just Trump himself who’s pushing this line. In its legal challenge to Robart’s ruling, the White House argues that the federal judge was in no position to rule on the propriety of the executive order, because he lacks access to classified intelligence.
This is an argument for allowing our fear of terrorism to overwhelm our commitment to the rule of law — a line of reasoning that poses a far greater threat to the American form of government and way of life than any closeted-jihadist refugee ever could.
