Trump is not the first president to criticize judiciary

Many have criticized President Donald Trump’s derisive comments about Federal District Judge James Robart. In a tweet, the president referred to Robart as a “so-called judge,” following the judge’s decision to issue a temporary injunction against enforcement of the president’s temporary travel restrictions.

More recently, the president made more muted, but still critical, comments about the Ninth Circuit Judges who have heard the appeal of Robart’s order.

Critics have assailed the president for attempting to undermine the legitimacy of the judge, and of the judiciary in general. After all, while the legislative and executive branches criticize each other constantly (and often in much harsher terms than Trump used with the judiciary), having the political branches attack the judiciary is not generally considered appropriate.

Indeed, Judge Neil Gorsuch, the president’s nominee for the Supreme Court, reportedly called these statements about judges and the judiciary “disheartening.”

{mosads}Trump’s comments were indeed unfortunate examples of attempts to politicize, and undermine, the judiciary. However, even if one thinks these comments are the worst such examples, it is important to realize they are not the first.

The norm against questioning the bona fides of the judiciary has been deteriorating for a long time. Those who condemn this comments should ask themselves the extent to which they questioned the various comments that paved the way for Trump’s tweet.

Moreover, a member of the judiciary itself — Supreme Court Justice Ruth Bader Ginsburg — has helped to pave this path.

Perhaps the most famous historic example of criticizing the judiciary was President Franklin Roosevelt’s attack on the Supreme Court for having declared unconstitutional several statutory components of his New Deal program to combat the Great Depression.

In a 1937 radio broadcast “fireside chat,” Roosevelt took his message directly to the people and argued: “The court has been acting not as a judicial body, but as a policymaking body.” He explained: “When the Congress has sought … to serve our clearly national needs, the majority of the court has been assuming the power to pass on the wisdom of these acts of the Congress — and to approve or disapprove the public policy written into these laws.”

To be sure, Roosevelt was arguing against judicial invalidation of statutes, not (as in Trump’s case) an executive order. Still, the Department of Justice has argued that express statutory authority empowers the Trump administration to implement the temporary travel restrictions; thus, the cases are not so far removed as one might think.

It’s surely also the case that Roosevelt expressed his point more eloquently, and in far more logical detail, than did Trump. Part of that can be chalked up to the uncontroversial point that Roosevelt far outstrips Trump on eloquence. And part can be explained by technological advances that have moved the country from radio to internet dominance, and by the trend (perhaps in some ways for better, but likely more for worse) toward the sound bite as the best way to reach the American people.

Much more recently, President Obama had a couple of notable run-ins with the Supreme Court. In his 2010 State of the Union, he chided the court for a recent decision holding unconstitutional certain campaign finance restrictions. Obama asserted that the court, in reaching its decision, had “reversed a century of law.”

That statement implicitly questioned the legitimacy of the court’s holding; after all, what would drive the court to reverse a century’s worth of precedent? This assertion was certainly more muted and nuanced than Trump’s tweet about Judge Robart, but the setting in which Obama made the assertion makes that episode arguably more troubling than the current one involving Trump.

After all, Obama delivered his remark during the State of the Union, effectively chiding the members of the court (or at least the majority in the case) who were sitting before him as a captive audience, and subjecting them to the emotions of the assembled legislators.

In 2012, with the keystone case that would determine the viability of ObamaCare having been argued before the court but still awaiting decision, Obama cautioned the court to “play it straight when it comes to the interpretation” of the statute. A majority of the court ultimately did rule in favor of the president’s preferred outcome, but the president’s statement suggests that justices who did not rule in his favor would not be “play[ing] it straight” drew in question the legitimacy of the reasoning employed by those justices.

If the norm against criticizing the judiciary has decayed over the years, at least one judge — Ginsburg — has contributed to that decay. During last year’s presidential campaign, Ginsburg made some very critical comments about then-candidate Trump. She was roundly criticized for making the comments and later apologized, but the damage was done.

Judges are limited in their ability to curry public favor because they do not speak out on important issues; their communications are generally limited to issuing opinions and rulings. But to whatever extent this limits the judiciary’s ability to defend itself against attack, it at the same time serves to insulate the judiciary from attacks by highlighting how the courts are different form the political branches of government.

Ginsburg’s comments chipped away at that perceived distinction, thus making it more acceptable for political actors to critique judicial actors and actions. (Ironically, just this week, Ginsburg publicly lamented the increased partisanship in the Congress.)

While the comments were hers alone, the damage they caused redounded to the detriment of the judiciary as a whole.

None of this is to defend the language in Trump’s tweet or his comments about the Ninth Circuit Judges. Two wrongs do not make a right. But even if Trump’s tweet is the worst example of judicial criticism by a president we have ever seen, it is unfair to critique the president from abandoning a strong norm.

Norms like the special place of the judiciary in society are not destroyed overnight; rather, the displacement of a norm is a slippery slope.

President Trump’s comment simply continues a trend that begun long ago and has continued over the year. Those who are troubled by his comments would do well to address the problem as a whole rather than fixate on the Trump as the sole offender.

Jonathan Nash is a professor of law at the Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.

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