Presidents v. the Judiciary

Presidents v. the Judiciary
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Donald Trump has an unorthodox method of presidential communication (Twitter), the sensibilities of a New York insult comic, and a Manichean—and high-octane—worldview in which critics are dismissed as “BAD!” or “SAD!” or purveyors of “FAKE NEWS.”

All of this was known before the president took aim at a U.S. District Court judge in Seattle -- who put a stay on his immigration ban -- and then criticized the 9th U.S. Circuit Court of Appeals hearing oral arguments on the case.

 Yet Trump’s tweets on this matter were universally denounced in apocalyptic language by elites of both parties, legal scholars, and the media. Trump’s own choice for the Supreme Court, speaking on behalf of judges everywhere, termed the president’s judiciary-bashing “disheartening” and “demoralizing.”

Not to question the sincerity of Trump critics or Judge Neil Gorsuch himself—there’s too much impugning of others’ motives these days already—but the idea that sitting presidents always accord deference to the judiciary is not historically accurate.

From Thomas Jefferson to Barack Obama, U.S. presidents have lashed out at the judiciary in general and the Supreme Court in particular, and in ways far more threatening than a couple of insulting tweets.

Thomas Jefferson v. Samuel Chase

As a signer of the Declaration of Independence appointed to the U.S. Supreme Court by George Washington, Samuel Chase might have been considered beyond reproach, but that’s not how politics was practiced in 1800-1801. It was a period in American history a lot like 2016-2017, come to think of it.

Although he’d been a firebrand in the years leading up to the Revolutionary War, by 1800 Chase was a Federalist, and got crosswise with Jefferson by politicking for John Adams’ re-election. Although Adams lost to Jefferson, just before he left office he signed the Judiciary Act of 1801, expanding the federal bench with appointees dubbed “Midnight Judges.” When Justice Chase acted to thwart repeal, Jefferson called for his impeachment. This nakedly partisan move succeeded in the House, but Chase was acquitted in the Senate.

Thomas Jefferson did not have Twitter, but he wouldn't have used it anyway: His systematic attack on the judiciary was done in stealth. Writing on May 13, 1804 to a fellow party stalwart, Rep. Joseph Nicholson of Maryland, Jefferson inquired not-so-subtly: "Ought this seditious and official attack on the principles of our Constitution and the proceedings of a State go unpunished?” Jefferson added disingenuously, “The question is for your consideration; for myself it is better I should not interfere.”

Prosecuting Chase in the Senate over philosophical differences constituted an attack on the very idea of an impartial judiciary. To carry water on this dubious theory, Jefferson relied on a fellow Virginian, Sen. William Branch Giles, whose views on the matter were transcribed by John Quincy Adams at the outset of the trial. Giles, noted Adams, “treated with the utmost contempt the idea of an independent judiciary and said there was not a word about their independence in the Constitution.”

That view did not prevail, but it was hardly the end of the battle of wills between the executive branch and the judiciary in this country.

Andrew Jackson v. John Marshall

The “five civilized tribes”—the Choctaws, Cherokees, Creeks, Chickasaws and Seminoles—did everything the U.S. government asked of them. They surrendered large swaths of their traditional lands, adopted the whites’ laws and customs. They embraced farming and lived in towns and hamlets in the Southeast. The Cherokees, in particular, assimilated: embracing Christianity and adopting a Constitution based on the U.S. model. Then gold was discovered on their lands.

To accommodate thousands of whites pouring into the region, Georgia and other southeastern states invalidated federal treaties guaranteeing Indian claims to their lands. Congress sided with the states. So did President Andrew Jackson, who’d been a renowned Indian fighter as a younger man. The Cherokees sought redress through the federal courts and their litigation reached the Supreme Court, then led by Chief Justice John Marshall. The court ruled in their favor—for all the good it did them.

Horace Greeley later quoted President Jackson as saying, “John Marshall has made his decision. Now let him enforce it.” Most Jackson biographers believe that quote to be apocryphal, but several reliable witnesses did hear Jackson say he thought the Marshall court had decided erroneously, and in any event, the government did not enforce it, which led to the removal of 16,000 Cherokees, 4,000 of whom died on the “Trail of Tears.”

Abraham Lincoln v. Roger B. Taney

In 1861, pro-secession riots broke out in Baltimore after the Maryland legislature declined to leave the Union. To keep a lid on things, Gov. Thomas Hicks took measures to prevent the movement of Union troops through his state, which is how a Baltimore County militia officer named John Merryman came to be accused of vandalizing railroad tracks between Baltimore and Washington, D.C.

A justifiably irked Abraham Lincoln ordered Merryman’s arrest, but here’s where things got interesting. Instead of being charged with a crime, Merryman was simply apprehended at his home on May 25, 1861 and taken to Fort McHenry where he was locked up.

Chief Justice Roger B. Taney, though aware that Lincoln had “suspended” the right of habeas corpus on April 27, issued a writ to Fort McHenry’s commanding officer to produce Merryman. The commander refused, citing his commander-in-chief’s order. Taney ruled that only Congress held such power, and that the president had superseded his constitutional authority. Lincoln did not verbally abase Taney, as Donald Trump surely would have, but he didn’t obey the court’s order, either.

When questioned by Ohio Democrats, Lincoln responded in writing.

“You ask… whether I really claim that I may override all the guaranteed rights of individuals, on the plea of conserving the public safety,” he wrote. “By necessary implication, when rebellion or invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the Constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power.”

The Roosevelts v. the Judiciary

In his first term in office, Franklin D. Roosevelt was frustrated by several Supreme Court decisions that put a crimp in the New Deal. The court’s small-government majority was led by a cabal of four justices over the age of 70—the “Four Horsemen” they were called—who issued a series of rulings limiting the power of the federal government to micromanage the economy in areas ranging from the pricing of oil to that of kosher chickens in a New York City deli.

That’s right, the so-called “sick chicken” case involved a kosher butcher who ran afoul of the National Recovery Administration, which produced some 750 regulations and allowed trade associations to set up cartels. A unanimous Supreme Court ruled against the government in the case, which involved two uninspected chickens. The law, wrote Justice Benjamin Cardozo, was “delegation run riot.”

President Roosevelt didn’t agree. He’d run against the Supreme Court in 1932, saying it was “in complete control of the Republican Party,” and flush with his landslide re-election victory in 1936, FDR decided to strike.

On Feb. 5, 1937, he proposed a sweeping challenge to the court in the form of an infamous “court-packing” scheme. If a justice did not retire at age 70, the legislation stated, an “assistant” justice would be appointed to aid him—with full voting rights—and these “assistants” wouldn’t be appointed by the jurists in question, but by the president. In theory, the court could grow to 15 justices, most of them appointed by Roosevelt.

In the end, the scheme was rejected resoundingly by Congress, but as the Great Depression deepened, the court softened on its approach to the New Deal.

Speaking of Roosevelts, having left office in 1909, Teddy Roosevelt wasn’t president in 1912, but he was trying to make a comeback. The high court was much in the news then, too, and while campaigning that February, TR caused a nationwide sensation by declaring that the Supreme Court should not be the ultimate arbiter of the law.

“When a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong,” he said.

Obama v. Trump

The point in recalling these examples is two-fold. First, it’s not the worst and the weakest U.S. presidents who’ve sought to subvert judicial independence. It’s the activist presidents who’ve done so, for obvious reasons: They chafe under limitations imposed on their authority by separation-of-powers doctrine.

The second point is that when it comes to Donald Trump, his critics have selective memories, along with a clear double standard. Where was the outrage in liberal quarters when Barack Obama went on a sustained public relations campaign to intimidate the Supreme Court into upholding the Affordable Care Act? Or when he publicly assailed the court for upholding the First Amendment in the Citizens United case?

In his 2010 State of the Union Address, with several of the justices sitting in front of him, Obama delivered a blistering attack on Citizens United, which he said “reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”

This was a strange interpretation of a decision that merely ruled that a small conservative U.S. nonprofit should not have been prevented from airing and advertising its 2008 documentary film critical of Hillary Clinton, who was running for president. And Obama’s salvo offended at least two of the justices. While Sen. Chuck Schumer stood behind them clapping vigorously, Justice Samuel Alito was caught on camera shaking his head mouthing the words “not true.” Chief Justice John Roberts later said at the University of Alabama that he found such attacks from the president “very troubling.” But Obama was just warming up.

At an April 2, 2012 Rose Garden press conference, the president answered a question about the legal challenge to the ACA this way: “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Aside from whether it’s proper for a president to pressure the Supreme Court over pending legislation, Obama’s assertions were plainly false. The health care statute had passed on a narrow, party-line vote—not a “strong majority”—and his party had paid for it in the subsequent midterm elections. Moreover, the high court had been overturning such laws for 200 years by the time Obamacare came along.

Nonetheless, in March 2014, Obama told Reuters that there was “not a plausible legal basis” for striking down the law. He made it clear that if people lost their health insurance, he would be blaming the Supreme Court. This is precisely the same cudgel Donald Trump has used to try and pressure the courts in the current immigration case.

Was Trump out of line? Yes, just like Jefferson, Jackson, Lincoln, both Roosevelts, and Obama before him. And the record suggests that working the refs this way doesn’t hurt a president: John Roberts was the surprise fifth vote upholding Obamacare in the face of a “commerce clause” challenge.

The best rejoinder to those who fear that an independent judiciary is at stake is that the adverse ruling of U.S. District Court Judge James Robart—the man Trump called a “so-called judge”—was unanimously upheld Thursday night by a panel of three appellate jurists.

Trump’s response was older than the Republic and as American as apple pie: “See you in court,” he tweeted.

Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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