Will anything cause the conservatives to rethink? Will they, for example, become less eager to salivate at the president’s bell if he intensifies his assault on the independence of the courts?
Let’s hope so—because in recent weeks he has done exactly that, opening two new fronts in this sordid war. He is at swords’ points with the federal courts generally, with individual judges who have displeased him, with private citizens who as jurors defy his preferences, and now with the Supreme Court. If the nation were not numb from the shocks of the past three years, this remarkable vendetta would be prompting an uproar.
The war goes back years. Even before he was elected president, Trump attacked Gonzalo P. Curiel, the trial judge in a civil-fraud case against Trump University, as a “Mexican judge” who should not be permitted to hear cases about Trump, because “I’m building a wall.” (Curiel was born in Indiana.) When Judge James Robart of the Western District of Washington halted Trump’s first travel ban, the president dismissed him as a “so-called judge,” and when the Ninth Circuit agreed with Robart, the president actually threatened to dismantle that court. When Judge Derrick K. Watson of the District of Hawaii stayed a later version of the ban, Trump archly asked the angry crowd at one of his rallies, “You don’t think this was done by a judge for political reasons, do you?” When Judge Jon S. Tigar of the Northern District of California stayed new rules barring asylum applications from immigrants who had entered the United States unlawfully, Trump responded, “That’s not law. This was an Obama judge.”
After that last salvo, Chief Justice Roberts, in a remarkable Thanksgiving-eve rebuke, pushed back against the president. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said, adding pointedly that an “independent judiciary is something we should all be thankful for.” Trump was neither thankful nor deterred—he issued a tweet condemning Roberts by name and mocking the very notion of an “independent judiciary” (scare quotes Trump’s).
Read: The Supreme Court’s enduring bias
Surprising as Roberts’s criticism of Trump was, Trump’s refusal to shut up was more so; the chief justice responded obliquely in his year-end State of the Judiciary message: “We should celebrate our strong and independent judiciary, a key source of national unity and stability.”
But so far, Trump has not joined the celebration. In fact, it’s fair to say that the independent judiciary hasn’t faced such a direct attack since the Jeffersonians tried and failed to purge the bench of Federalists during Thomas Jefferson’s first term. Franklin D. Roosevelt attacked the high court—but not the entire federal bench.
In February, Trump picked a fight with U.S. District Judge Amy Berman Jackson as she was pondering the proper sentence for his friend and confidant Roger Stone, who was convicted of lying to Congress. “Is this the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure?” Trump tweeted. “How did she treat Crooked Hillary Clinton? Just asking!” After Jackson imposed a sentence of three years and four months, Trump shifted his fire to a private citizen who had served as foreperson of the jury: “There has rarely been a juror so tainted as the forewoman in the Roger Stone case. Look at her background. She never revealed her hatred of ‘Trump’ and Stone. She was totally biased, as is the judge … Miscarriage of justice. Sad to watch!” Jackson responded that this kind of attack on a juror—one who was approved for service by both sides in the Stone trial—might actually put her physical safety at risk. And when Jackson added, without specifying any individual, that the Stone jurors “served with integrity,” Stone’s lawyers immediately demanded that she take herself off the case because of “bias.” Trump seconded this demand on Twitter.