Guys, don’t look now, but the president is in a twitter war with the Chief Justice of the Supreme Court. Justice John Roberts attempted to correct POTUS with this statement:
We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.
And President Donald Trump just wasn’t having it:
Sorry Chief Justice John Roberts, but you do indeed have “Obama judges,” and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an “independent judiciary,” but if it is why……
— Donald J. Trump (@realDonaldTrump) November 21, 2018
And Trump couldn’t leave it there, because of course he couldn’t:
Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result. Judges must not Legislate Security…
— Donald J. Trump (@realDonaldTrump) November 22, 2018
….and Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written!
— Donald J. Trump (@realDonaldTrump) November 22, 2018
This is hardly the first time that 45 has been the sorest of losers after being smacked down by a federal court. As usual,Trump is there to criticize any person or body with the audacity to challenge him. Generally, this is nothing new, but when the target is the chief justice, it raises the stakes a bit.
Trump’s demeaning the federal judiciary began almost immediately upon taking office. Remember this tweet?
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
That was Trump’s response to unfavorable rulings on his Executive Order directing “extreme vetting” of refugees. And it wasn’t the complaining that was the real problem – it was the unveiled questioning of judicial authority. For those who were hoping for a quick end to Trump’s presidency, indication that he had positioned himself to disregard federal court orders started serious conversations about impeachment. While criticizing judges isn’t an offense on its own, ignoring a court’s authority is far more problematic.
At the time of the “so-called judge” tweet, Neil Gorsuch, Trump’s first judicial darling, made sure to clarify that he stood with his fellow judges in the face of Trump’s inappropriate attacks. Before Gorsuch was confirmed, the New York Times ran a piece reminding readers what Gorsuch had written about the independent judiciary and called on Gorsuch to denounce Trump’s “so-called judge” tweet.
To this day, one of the surest proofs any nation enjoys an independent judiciary must be that the government can and does lose in litigation before its ‘own’ courts like anyone else.
Gorsuch responded by calling Trump’s attack “disheartening and demoralizing,” – a statement that, in the context of a future Supreme Court justice, amounted to a fairly serious rebuke.
That brings us to now. Trump has been building a case against the federal judiciary since he was on the campaign trial. And now, his attacks are becoming more brazen and more frequent. MAGA America, meanwhile, is ramping up its support. Check out Joseph DiGenova’s op-ed, in which he rails that Justice Roberts’ defense of the federal judiciary was just “too political.”
It hardly takes a forensic psychologist to see that Trump is getting closer to outright defiance of the judiciary. He’s not quite there yet, but calling out the chief justice of the Supreme Court while simultaneously pardoning the White House turkey sure is the next step. Right now, it may be little more than Trump bluster. But if that bluster indicates any actual defiance of judicial authority, that’s a far more serious problem. The relationship between POTUS and SCOTUS is one that is meant to carry on at arm’s length; as Trump edges closer to destroying that balance, so too does he skirt the edge of executive authority itself. Does that mean tweeting about Roberts is a “high crime and misdemeanor”? No. Does it provide troubling context for other actions that may themselves contribute to decisions on impeachment? You bet it does.
While Trump isn’t known for being a particularly careful guy, relations with the judiciary is an arena in which he’d be well-advised to tread lightly. Few things would warrant impeachment with the clarity that defiance of a federal court order would. Any action contrary to a federal ruling would easily fall under the “high crimes and misdemeanors” clause in the Constitution needed to impeach a president. While Trump hasn’t taken any such action right now, his rhetoric certainly indicates a willingness to consider doing so in the future. We’ve seen such a shift from rhetoric-to-decision when it comes to Trump’s cooperating with the Mueller investigation as well as many other topics; unless we’re collectively willing to be asleep at the wheel now, we need to pay attention to his anti-court statements now.
While Trump may have conned quite a large portion of America into believing that popularity trumps legality when it comes to policy, Congress knows it doesn’t quite work that way. Whether or not a majority (real or imagined, in Trump’s case) of Americans believe the president should violate a direct court order, doing so would be patently illegal.
Let’s keep in mind, too, that the “high crimes and misdemeanors” necessary to spark impeachment proceedings may not actually have such a narrow definition. Some legal scholars have advocated a legal basis for impeachment that functions more as a presidential performance review than as a prosecution for high-level wrongdoing. In the [unlikely, but possible] event that Congress were to adopt such a view, even critics of Roberts‘ jabs might arrive at the conclusion that the Trump presidency has so inhibited judicial apoliticism that it simply must end.
This piece has been edited to include additional legal analysis.
[Image via Jim Lo Scalzo/Pool/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
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