Harry Litman

Opinion contributor

Presidents throughout history have protested individual decisions of the federal courts, but President Donald Trump’s muddled tirade against the 9th Circuit Court of Appeals, followed by his remarkable war of words with Chief Justice John Roberts, was unprecedented in its sheer cheek.

Yet the likelihood is that his histrionics will cost him nothing.

Trump’s attacks were triggered by a court decision that set aside his executive order blocking asylum requests from certain immigrants, on the grounds that U.S. law specifically defines them as eligible. The setback sent Trump into a general rant about “Obama judges" (who in Trump’s worldview are political opponents bent on resisting his glorious rule). That shortly evolved into a series of rants about the 9th Circuit specifically.

In response, Roberts issued a public scolding that America doesn't have “Obama judges or Trump judges,” and that the “independent judiciary is something we should all be thankful for.” In the decorous robed domain of the Supreme Court, this was tantamount to a screaming reproof.

Living as the chief justice does in a world where a raised eyebrow causes litigants to hop to, Roberts perhaps thought the statement would suffice to chasten and reform Trump.

Trump's court rants are riddled with errors

Not a chance with the 45th president, whose impudence is boundless and incorrigible. Trump responded to the chief justice as he would any other antagonist, redoubling his campaign in an impertinent tweet that began, “Sorry Chief Justice John Roberts.” He called the 9th Circuit a “complete and total disaster (that) is overturned more than any Circuit in the country,” a diatribe that he only amplified as the week wore on.

Trump being Trump, the rants were riddled with factual errors. Given his reference to reversal rates and his subsequent attacks, he appeared to believe that the adverse decision came from the 9th Circuit Court of Appeals. But the decision that set him off was from Jon Tigar, who does not even sit on that court. He is a federal district court judge in San Francisco. (Tigar is, moreover, an excellent and fair-minded judge whom I have known ever since he was a stellar law student, and his decision was fully consistent with the law, which on its face is inconsistent with Trump’s executive order.)

Second, Trump was misleading at best in his characterization of the 9th Circuit. The court’s rate of reversal in the Supreme Court is lower than that of several other circuits. (Its total reversals are higher in number only because it is by far the larger circuit; it also has the most affirmances, as professor Steve Vladeck has pointed out.) In any event, the Supreme Court hears a minuscule percentage— well under 1 percent — of the 9th Circuit’s cases, and that sample scarcely serves to characterize the court’s overall quality.

Third, all kinds of judges have ruled against Trump, among them Republican appointees who disagreed with him in cases involving immigration, press freedom and the legitimacy of special counsel Robert Mueller. Those last two decisions came from judges Trump named himself.

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Many other presidents have taken issue with judicial decisions on the merits. Most famously, President Abraham Lincoln excoriated Chief Justice Roger Taney’s scandalous analysis in the Dred Scott case. Andrew Jackson, Dwight Eisenhower and Barack Obama, among others, also have disagreed with the court.

Trump’s harangue differed from all of these in its scorn and sheer demagoguery. He made no effort — if he were even capable of doing so — to challenge the court’s legal reasoning. His Willie-Horton style argument was rather that the court’s application of the law was making the country less safe.

The only even remote analogue to Trump’s assault on the independent judiciary was Franklin D. Roosevelt's 1937 court-packing plan to enlarge the court and add justices sympathetic to his policies. FDR offered arguments on the merits, but he also played a bit dirty, telling the country in a fireside chat that the courts “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.”

It was a mistake that cost Roosevelt. The court-packing plan failed to win public support, and it retarded his efforts to enact the ambitious series of laws that brought the country out of the Great Depression.

The court's integrity is a double-edged sword

If history is any guide, Trump’s attacks will backfire and hurt him politically. Unfortunately, as has so often seemed the case over the past two years, history is not any guide. Trump's sole political lookout is his roughly 43 percent base. From that standpoint, the contempt of the majority is a political plus stoking the same fires that got him elected. And his nose-thumbing at legal and cultural elites — and they don’t come more elite than the chief justice of the United States — similarly tends to delight the only voters he cares about.

Moreover, Trump needn’t worry that Roberts will continue to engage with him. Roberts would never stoop to carrying out a personal battle with the president, which would be bad for public confidence in the court and demeaning to him personally.

But hasn’t Trump made it more likely that the court will rule against him if some landmark case involving his presidency and even his liberty comes before it? In a word, no. Roberts has too much integrity to permit Trump’s imbecility to affect his legal judgment.

On the other hand, that same integrity bodes ill for Trump if his fortunes are one day put in the court’s hands — for example in a legal battle over a subpoena for the president’s testimony. The court is likely to bring Trump to heel (and, I would predict, in an opinion authored by Roberts and joined by Justice Brett Kavanaugh).

That is not because of its personal distaste for this president, but because Trump’s general claim to be above the law is constitutionally offensive and untenable. Should the court one day make that clear, its mandate will prove the ultimate test of Trump’s contempt for the rule of law.

Harry Litman, a former U.S. attorney and deputy assistant attorney general, is of counsel at Constantine Cannon and teaches a course on the Constitution and the Supreme Court at the University of California-San Diego. Follow him on Twitter: @harrylitman