Trump’s judicial criticism is dangerously reckless

Artists-impressions-of-Lady-Justice, (statue on the Old Bailey, London)
This is Donald Trump’s tweet from Saturday, mocking a federal judge who halted his travel ban for refugees:

One of my biggest fears about President Trump was that he would try to undermine the judiciary if it pushed back on his orders. Our federal judges are, across the board, extremely high caliber. To insult this judge, who was appointed by President Bush, as a “so-called judge” is needlessly disrespectful and dangerous. To those who support Trump, please don’t follow him down this misguided path of disparaging our federal judiciary.

To be clear, I often disagree with judges’ decisions. But not with their authority or integrity based solely on a ruling I disagree with. Will Baude pointed this out over at Volokh Conspiracy:

There have been occasions when officials questioned not just the courts’ decisions but also their authority — Attorney General Bates’s discussion of judicial authority during the Civil War may be the most important example — but this is rarer. And while the difference between the two is sometimes fuzzy, and may seem minor, it is deadly serious.

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

A friend compared this to President Obama’s 2010 State of the Union, in which he criticized the Citizens United decision in front of Supreme Court Justices in attendance. That is an interesting comparison, and I think it underscores why Trump’s tweet is so reckless.

I looked back at Obama’s remarks. He didn’t attack the legitimacy of the institution (i.e., “so-called” judge). He made a cogent policy argument for why he thought Congress should act in the wake of the Court’s decision. He also was careful to preface his comments with “With all due deference to separation of powers.”

Trump’s remarks are kneejerk and crass, and appear aimed to sow the seeds among his supporters that judges who oppose him are the enemy.

Here’s Obama’s full remarks, for comparison:

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. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

You won’t get a fight from me on the fact that there are very good arguments to be made that executive authority is run amok. But until now, when challenged in court, the executive has allowed the system to follow its normal course, without ad hominem attacks on the judges involved. I think Democrats would be smart to get Gorsuch to condemn this stuff and stand up for the judicial system during his confirmation hearing. Eric Posner suggested something similar in the New York Times:

[Gorsuch] is the only judge in whom the president has publicly expressed confidence — by nominating him to a judicial position. A rebuke from Judge Gorsuch would be a stinging blow. It would, or at least might, protect the judiciary from further attacks from Mr. Trump for years to come.

Posner pulled out a quote from one of Judge Gorsuch’s opinions, In Re Renewable Energy Development Corp., 792 F. 3d 1274, 1277-78 (10th Cir. 2015) (citations omitted), that is too apt not to share:

[T]he framers lived in an age when judges had to curry favor with the crown in order to secure their tenure and salary and their decisions not infrequently followed their interests. Indeed,  the framers cited this problem as among the leading reasons for their declaration of independence. And later they crafted Article III as the cure for their complaint, promising there that the federal government will never be allowed to take the people’s lives, liberties, or property without a decisionmaker insulated from the pressures other branches may try to bring to bear.  To this day, one of the surest proofs any nation enjoys an independent judiciary must be that the government can and does lose in litigation before its “own” courts like anyone else.