Trump, a diligent reader of my Dictator’s Handbook, has followed up his attack on the press with a challenge to the judiciary. Some commentators have sought to justify his behavior by pointing out that other presidents have acted similarly, and rightly so, because the judiciary itself has been corrupted by politics. Here is Steven Calabresi:
Out of politeness, Trump should not refer to judges as “so-called judges” — but he should be praised, not criticized, for taking on the judicial oligarchy in this country.
And the New York Sun, in an editorial entitled The Gorsuch Gaffe:
Mr. Trump is but one of the millions of voters who are upset by the politicization of the courts and he has emerged as a tribune for, among other things, millions of citizens who feel similarly. We’re among them. It’s not that we’ve lost our oft-expressed admiration for the greatest of our judges. They are heroes of the Republic. To protect them was an enumerated reason for seceding from Britain, which is why when they fail to redeem that bet it is so particularly — to use Judge Gorsuch’s phrase — disheartening.
Against those who see the judiciary as an independent branch of government, committed to protecting the “rule of law,” Trump’s defenders define it as an “oligarchy” that enforces a left-wing policy agenda. Trump, our Sulla, will clear away the rot.
The problem with this view is not the charge that the courts are politically biased, or even that they are an oligarchy. Until a few days ago, the most vigorous critics of the Supreme Court came from the left, who complained that the five-justice Republican majority (until Scalia’s death) sought to implement a right-wing agenda that favored property rights and discounted equal protection for vulnerable minorities.
The problem is the leap from a widely held view—that the Supreme Court, and hence the court system as a whole, is influenced by legally irrelevant ideological considerations—to the claim that a president is entitled to launch personal attacks against a trial judge who ruled against him, even before the ruling has gone through the process of appeal. Political science literature that finds evidence of ideological bias in the U.S. judiciary must be interpreted in light of political science literature that finds democratic failure in countries that hold the judiciary in low regard.
Until now, the remedy for judicial overreaching was thought to be the appointment process, through which Republicans could bend the Court to the right and Democrats could bend the Court to the left, in the process confirming each other’s and the public’s jaundiced view of the Court. And, of course, presidents have always criticized Supreme Court opinions they disagreed with.
The attack on an individual trial judge is a new step—a true violation of a constitutional norm—unless you think that Lincoln’s actions during a Civil War is relevant precedent. And Trump has doubled down by issuing veiled criticisms of the Ninth Circuit panel for giving Washington State the dignity of a hearing. Just holding a hearing is now interpreted as motivated by bias. Precedents and conventions are not self-defining; one needs at least an implicit constitutional theory. Will intellectuals fall into line and argue that because Lincoln suspended habeas corpus at the outset of a Civil War, Trump is entitled to as well? Not yet, I think.