By Melanie Zanona and Mike Lillis
This article appeared on The Hill on Feb. 8, 2017
President Trump’s criticism of federal judges could color the debate when big issues on his agenda hit the Supreme Court.
The collision appears inevitable, with Trump’s executive order halting travel to the United States by people from seven majority-Muslim countries — a ban a federal judge blocked last week — already moving quickly through the judicial system.
Legal scholars say Trump’s attacks on judges are unlikely to have any effect on a high court ruling. But it will be impossible for the justices to have missed those broadsides, which have extended to Chief Justice John Roberts himself.
“Judges will and should try not to be influenced by his trashing of the independent judiciary, but judges are only human,” said Laurence Tribe, a constitutional law professor at Harvard Law School.
Roberts has maintained a reputation as an institutionalist who prides himself on staying above the political fray. But many also consider him the savior of ObamaCare after his votes kept the law afloat in two major decisions that conservatives called politically motivated.
And he made little effort to disguise his vexation when President Obama criticized the Supreme Court’s 2010 Citizens United decision on political spending.
Trump’s travel order could be on the Supreme Court docket soon.
A federal appeals court heard arguments on Tuesday, and the next stop would be the high court.
Any decision will be interpreted through the prism of Trump’s comments on the judiciary, which critics say threaten the separation of powers.
“This is obviously not helpful to the [Department of Justice], which is dealing with a very challenging legal issue,” said Jonathan Turley, a constitutional law professor at George Washington University. “When you’re trying to convince the courts to respect presidential authority, it’s something incongruous when you don’t show respect for judicial authority.”
The criticism extends beyond judicial scholars.
Rep. Mark Sanford (R-S.C.) warned that Trump’s attacks, if they continue, threaten not only to undermine the separation of powers but also the president’s own policy agenda.
“We’re a nation of laws and not men, and this idea of ‘follow me because I say so’ is completely at odds with the Founding Fathers’ intent,” said Sanford, a Trump supporter who has also criticized the president on certain issues.
“I learned a long time ago in politics [that] attacking the person or the group that will decide your fate on a given issue generally doesn’t work out that well,” he added.
Trump acknowledged Tuesday that the fight over the travel ban could wind up at the Supreme Court.
“We’re going to take it through the system,” Trump told reporters during a meeting with sheriffs at the White House. “It’s very important for the country.”
Separately, his press secretary, Sean Spicer, said the president respected the judicial branch, a different signal than Trump sent.
Trump on Saturday morning lashed out at U.S. District Judge James Robart — an appointee of President George W. Bush who temporarily froze Trump’s travel ban — labeling him a “so-called judge” and later suggesting he should be blamed if anything bad happens as a result of the policy being put on ice.
Trump’s remarks were all the more notable because it wasn’t the first time he had attacked a judge who disagreed with him.
In June, Trump suggested that District Judge Gonzalo Curiel — an Indiana native who was then presiding over a fraud case involving the now-defunct Trump University — could not rule fairly because of his Mexican heritage.
Rep. Steny Hoyer (Md.), the Democratic whip, said Tuesday that Trump’s repeated attacks on judges — both on the campaign trail and now from the White House — constitute a “dangerous” trend that undermines the public’s faith in its own court system.
“If I called President Trump a ‘so-called president,’ it would be perceived as a disrespect of the office of the president of the United States, and a question of the election, which I do not do. It was an unfortunate demonstration of [his] lack of respect,” Hoyer told reporters in the Capitol.
The remarks have put GOP leaders in an uncomfortable spot, caught teetering between their defense of the president and their support for a robust, independent judiciary.
“We respect an independent judiciary,” Ryan said Tuesday. “This is a separate branch of government.”
But Ryan was quick to emphasize that the administration is also “respecting the process” by complying with Robart’s ruling even as it appeals the decision.
Roberts, who has been somewhat of a focus among conservatives for upholding ObamaCare, has also been the target of Trump’s attacks. The president called him an “absolute disaster” on the campaign trail.
Those comments could be on display if any of the president’s policies land at the Supreme Court.
“They have vastly different personalities. It’s extremely unlikely that Roberts would engage in any tit-for-tat with any politician,” Turley said. “ I doubt that Roberts has tweeted once in his life.”
While Trump’s stormy relationship with the judicial system is unlikely to directly affect the outcome of a Supreme Court case, legal voices say his open venting from the bully pulpit could undermine Trump’s own agenda.
“[They] cannot avoid taking cognizance of the fact that they are dealing with a rogue chief executive who seems insensitive to our basic system of checks and balances and who … could well bring down that system and the republic built upon it,” Tribe said.
Some constitutional scholars say Trump’s tactics are problematic because they could undercut the public’s faith in the court system by appearing to pressure judges over politically charged decisions.
“You just want [judges] to be completely independent of the other branches and not to feel they’re under pressure from any source to decide the facts before them,” said Carl Tobias, a University of Richmond law professor.
It’s highly unusual for a sitting president to personally attack a justice in modern times, though legal experts say it’s more common for candidates to criticize judges on the campaign trail.
Scholars also point out that in his 2010 State of the Union address, as the justices looked on, Obama took aim at the Citizens United ruling, which allows corporations and unions to spend unlimited amounts of money on elections. Justice Samuel Alito, sitting near the front of the chamber, appeared to mouth the words “not true.”
Roberts later shot back, calling the comments “very troubling.” But Obama’s critique focused on the way the court ruled, not an individual justice.
“Most presidents leave the criticism to the opinion rather than the judges,” Tobias said. “I don’t remember this issue coming up before, even though the courts, and the Supreme Court, have issued opinions with which presidents have violently disagreed.”