Getty Opinion Our Overly Sanctified View of the Judiciary

Rich Lowry is editor of National Review and a contributing editor with Politico Magazine.

As you might have heard, Donald Trump tweeted at a judge.

The commentariat shuddered at the effrontery of it, some worried that the foundations of the separation of powers had been shaken, and even Supreme Court nominee Judge Neil Gorsuch reportedly said he was disheartened. Trump’s slam of Judge James Robart was undeniably crude and ill-considered, but it wasn’t a threat to our republic.


In fact, it is a symptom of our distorted and overly sanctified view of the judiciary that a criticism of a judge with a lifetime appointment is greeted with such pearl clutching. It is entirely appropriate that the political branches have their own view of the law and the Constitution and robustly contest — and even deny the legitimacy of — court decisions that they consider erroneous.

President Trump will have to go considerably further to come close to Andrew Jackson supposedly saying of a Supreme Court decision protecting the Cherokee Indians in Georgia, “John Marshall has made his decision; now let him enforce it.” Or to match the wars waged on uncongenial Supreme Court decisions by Franklin D. Roosevelt and Abraham Lincoln.

As always with Trump, caveats are necessary. His criticism of Robart, who blocked Trump’s travel ban, as a “so-called judge” was needlessly insulting. (It is apparently too much to ask that his advisers arm him with some clear and convincing legal points for his Twitter feed.) For the president’s own purposes, his attack on Robart is counterproductive; it might push other judges toward ruling against him out of a feeling of solidarity.

That said, Trump is fully within his rights, indeed it should be his responsibility, to defend the legal and constitutional prerogatives of the presidency as he sees them. Lincoln quoted Andrew Jackson for what should be the unassailable proposition that, “Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others.”

In other words, no one is obliged to accept the understanding of the courts. “The Constitution,” Chief Justice Charles Evans Hughes said, “is what the judges say it is.” No, the Constitution is what the Constitution says — no more, no less.

Obviously, political actors can be self-interested in their evaluation of the work of the court. Because he couldn’t tweet, FDR gave fireside chats. In a notorious talk in 1937, he described the American government as a three-horse team, pulled by Congress, the executive and the courts. Guess who was falling down on the job by striking down New Deal legislation? “Two of the horses are pulling in unison today; the third is not.” FDR proposed his court-packing scheme as the remedy (to get “new and younger blood” on the court, you understand).

If FDR’s court gambit is a blot on his record, Lincoln’s opposition to the Dred Scott decision redounds to his great credit. To say that Republicans weren’t deferential to the ruling is an understatement for the ages. They alleged a vast conspiracy of Chief Justice Roger Taney and top Democrats to commit offenses “comparable to the worst villainies of recorded history,” in the words of one historian.

Everyone would soon enough recognize Dred Scott as a disgrace. At the time, though, supporters of the decision considered it a means to peacefully settle a question tearing the country apart. For his part, Stephen Douglas made an argument that was simple and entirely familiar in today’s context: “Shut up, the Supreme Court justices have spoken.”

Lincoln allowed that Dred Scott applied to the particular parties to the case; he refused, though, to accept it “as a political rule.” This wasn’t Lincoln venting during an idle moment in his bathrobe. As Michael Stokes Paulsen, a professor at the University of St. Thomas School of Law, has written, “Lincoln’s answer to the problem of judicial authority was a hesitant, at first moderate, at times inconsistent, but increasingly radical and complete repudiation of the idea of judicial supremacy in constitutional interpretation.”

Lincoln devoted a portion of his first inaugural to developing his argument. “If the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court,” he said, “the people will have ceased to be their own rulers.” Lincoln and the wartime Republican Congress proceeded to govern as if the Dred Scott decision didn’t exist.

It’s an odd disconnect that Lincoln is justly considered perhaps the greatest statesman in the history of our country, yet his rejection of judicial supremacy that was so central to his view of our system is roundly ignored.

It is certainly true that presidents defying the court willy-nilly would be a formula for chaos. But you see a Lincolnian political resistance to the court in the anti-abortion movement. For decades now, it has refused to accept the legitimacy of Roe v. Wade, has used every possible lever of legislation and public persuasion to move the needle in an anti-abortion direction, and won’t rest until the decision is overturned.

The same attitude is evident in the Democratic opposition to Citizens United that looks to become a long-term political cause.

The fundamental point is that it is not just the executive or Congress that can abuse its power and overstep its bounds. The courts can, too, and no one is obligated to meekly accept their decisions.

If the courts throw out Trump’s travel ban, despite the black-and-white letter of the law giving him the authority to block aliens in the interest of national security, it will be a usurpatory act. In that scenario, the courts will have done more violence to our constitutional system than a foolish Trump tweet ever could.

