Up close and personal: how Trump's attacks against the judiciary are different

Trump is not the first sitting president to take a swipe at the courts. But legal scholars and political scientists say his MO is different in one key way. 

President Trump is not one to bite his tongue, especially when he is on his Twitter account in the early morning. But his recent swipes at the judiciary have even his Supreme Court nominee denouncing the attacks as “demoralizing” and “disheartening.”

Neil Gorsuch’s remarks were relayed to reporters by Sen. Richard Blumenthal (D) of Connecticut, who said the federal appellate judge made the comments in a private meeting with him on Wednesday. The comments were confirmed by Ron Bonjean, a member of the group guiding Mr. Gorsuch through his confirmation process.

Some following Gorsuch’s confirmation see his comments as an attempt to show Democratic senators he won’t be a rubber stamp for the president. But Gorsuch’s words also reflect concern among some Supreme Court observers over Trump’s treatment of the judiciary dating back to before the presidential election.

Strong-minded and strong-willed presidents have tended to butt heads with members of the High Court. Thomas Jefferson didn’t see the role of the judiciary in the same way as his cousin, Chief Justice John Marshall. Franklin Roosevelt, in an attempt to water down the influence of four conservative justices, tried to expand the Supreme Court by six members. And Barack Obama bashed the court through the press, a habit The Economist labeled “executive chutzpah.”

But past presidents, in their jabs at the judiciary, have directed their criticism at court actions and rulings, not judges themselves, say legal scholars and political scientists. Trump’s modus operandi, they say, is different: He attacks judges on a more personal level in what appears to be an attempt to delegitimize them.

“Trump is not reading judicial decisions and criticizing constitutional arguments. He is denouncing a so-called judge and saying decisions are ridiculous. Those pointed attacks from a sitting president are for sure unusual,” Thomas Keck, a political science professor at Syracuse University’s Maxwell School of Citizenship and Public Affairs, tells The Christian Science Monitor in a phone interview on Thursday.

“Trump appears to be of the view that anybody who disagrees with him is somehow illegitimate, lying, or incompetent,” he adds, mentioning Trump’s treatment of the mainstream media. “Now, he has the same reactions to judges.”  

Trump started to assail the judiciary after US District Judge James Robart of Seattle halted on Sunday Trump’s executive order that stopped the nation’s refugee program and barred travelers from seven predominantly Muslim countries. In a tweet, Trump referred to Mr. Robart as a “so-called judge” and said the ruling was “ridiculous.”

The president then turned his attention to a three-judge panel now hearing the case on appeal. The day after a Tuesday hearing, Trump told a group of police chiefs that the executive order was so “beautifully written” even “a bad high school student would understand this,” according to The Washington Post.  

"Courts seem to be so political and it would be so great for our justice system if they would be able to read a statement and do what's right," the president said at the Major Cities Chiefs Association Winter Conference in Washington. "And that has to do with the security of our country, which is so important."

In a private meeting that day with Gorsuch, Trump’s Supreme Court nominee, Mr. Blumenthal said he told the judge “how abhorrent Donald Trump’s invective and insults are toward the judiciary.”

According to Blumenthal, Gorsuch “stated very emotionally and strongly his belief in his fellow judges’ integrity and the principle of judicial independence” and that he found Trump’s comments “disheartening” and “demoralizing.”

But Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a group promoting Gorsuch’s nomination, says Trump’s tweets are no worse than his predecessor’s criticism of the Roberts Court.

“President Obama spent a lot more than 140 characters excoriating the court on Citizens United,” she tells the Monitor, referring to his 2010 State of the Union criticism of the Supreme Court, which had just decided the Citizens United v. Federal Election Commission case.

In fact, Mr. Obama, once a constitutional law professor, also made a habit of using the press to publicly comment on pending cases, something out of the norm, according to political scientists Matthew Eshbaugh-Soha and Paul M. Collins Jr.

“[U]nlike going public to pressure Congress to pass legislation, presidents rarely discuss pending judicial decisions for the purpose of influencing the court,” they wrote in The Wall Street Journal. “This suggests that presidents are deferential to the norm of decisional independence that is so central to an independent judiciary.”

While Obama appeared to threaten Alexander Hamilton’s argument in Federalist 78, that judges require “firmness and independence in office,” he was far from the first president to go after the court, explains Lucas Powe Jr., a law professor at the University of Texas at Austin. Abraham Lincoln feuded with Chief Justice Roger Taney when President Lincoln suspended the right of habeas corpus during the Civil War. And Franklin Roosevelt tried to dilute the influence of the four conservative justices, after the court struck down several key New Deal programs.   

But Mr. Powe agrees that Trump’s personalized attacks are attempts to delegitimize individual judges, something Trump also did during the presidential election. Trump questioned Justice Ruth Bader Ginsburg’s mental stability, and claimed a federal judge could not fairly adjudicate a fraud case against the defunct Trump University because of the judge’s Mexican heritage.

Any president that personally goes after the Supreme Court and the judiciary runs the risk of backlash, Jeff Shesol, author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court,” and a former speechwriter for President Clinton, told US News and World Report in 2010.

Even during periods of great controversy, when the Supreme Court is doing things that people intensely dislike, there is a great allegiance to and respect for the institution of the Supreme Court. And there is the feeling that while the Supreme Court sometimes makes decisions that are politically driven or ideologically driven, that it is the least political or ideological branch of government. So there's a real risk in attacking an institution that many regard to be sacred.

But the nature of Trump’s criticism could bounce back at him in another way, says Keck at Syracuse University.  

“There is lots of evidence from history that federal judges, when publicly attacked, instead of backing down, rally around each other and sort of stiffen up their resolve,” he says. “The fact the president is denouncing them for attempting to enforce the Constitution makes it possible or even more likely that judges will stand as firm defenders of the Constitution in the face of those attacks.”