an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Trump administration is doing it wrong. But perhaps I should be more specific.
The administration is unhappy with the courts. It is not clear that President Trump had any real concerns about the courts until his own executive order began to run into legal trouble. Nonetheless, the administration has quickly ramped up the rhetoric attacking the judiciary, spurring fears that the president will do serious damage to legal institutions and might even refuse to comply with judicial orders. From the president’s disparaging of a judge’s ethnic heritage on the campaign trail to White House adviser Stephen Miller’s talk show rejection of “a judicial usurpation of power” and insistence that the president’s decisions “will not be questioned,” the administration has been unusually aggressive in challenging the authority of the courts.
Presidential criticism of the courts is not unprecedented. When the New Dealers first coined the term “judicial activist,” they were making the same point and were just as shocking as President Trump’s jab at “so-called judges.” When Abraham Lincoln began his presidency with the pronouncement that the “people will have ceased to be their own rulers” if judges could irrevocably fix “the policy of government, upon vital questions, affecting the whole people,” he was throwing down a fundamental challenge to the supremacy of judges in interpreting and enforcing the requirements of the Constitution. Miller is merely echoing Lincoln, or more recently Attorney General Edwin Meese, when complaining that “we have a judiciary that has taken too much power and become, in many cases, a supreme branch of government.”
If the Trump administration is trying to borrow a page from such successful presidents as Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Franklin Roosevelt, they have not paid sufficient attention to American constitutional history. There is value in presidents pushing back against judicial authority, but presidents have a responsibility to do so in the right circumstances and with care. In particular, the administration would benefit from considering three lessons from the experience of their predecessors.
First, past presidents have challenged judicial authority in order to advance a larger constitutional vision. Questioning the courts was necessary when presidents had a substantive disagreement with how judges had developed constitutional law and the White House was seeking to set the nation on a new constitutional course. The Trump administration too often gives the impression that it is willing to attack the courts in a fit of personal pique and whenever they become inconvenient. In one case, challenging judges is part of the process of restoring our constitutional values. In the other, challenging judges is simply a threat to the rule of law.
Second, presidents who have successfully questioned the course that the judiciary is charting have built their case with deliberation and care. Political rhetoric is sometimes heated, and politicians rarely provide carefully worked out legal arguments. Nonetheless, presidents who seek to challenge the constitutional and legal opinions of judges have a responsibility to show where the judicial reasoning has gone astray and to commit themselves to defending the constitutional rules properly understood. When Franklin Roosevelt suffered repeated, devastating defeats in court, he did not simply assert that presidential decisions were beyond question. He, along with other defenders of the New Deal, offered lengthy explanations of how the judges had gone wrong. Presidents simultaneously committed themselves to the rule of law and constitutional limitations, even as they argued that the judges had misunderstood what those limitations were supposed to be. They offered an alternative interpretation of the Constitution, not a rejection of constitutionalism. Roosevelt called the press to the White House for a nearly two hour dissection of the Court’s latest opinion. He did not try to make his case in 140 characters or less.
Finally, presidents who have successfully questioned judicial authority have done so from a position of political and legal strength, not from a position of weakness. They first needed to be sure that their own house was in order and that their policies were as carefully designed and as fully defended as was possible. They did not try to build a campaign around a complaint that the courts had rejected hastily and shoddily drafted policies. Moreover, those presidents credibly spoke on behalf of a growing political movement. Their words carried the weight of a supportive Congress and a mobilized public. The Trump administration has isolated itself and squandered its political capital. In such circumstances, the courts are well-positioned to weather the storm.
The Trump administration might imagine itself the heir of the mantle of Andrew Jackson, but it instead seems to be going down the path of Richard Nixon. Neither the American people nor the American political elite is likely to rally behind the president in a battle with the judiciary when the president’s wounds seem mostly self-inflicted and the victories to be won seem more costly than they are worth.
Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and the author of Political Foundations of Judicial Supremacy. You can reach him by e-mail at kewhitt at princeton.edu