It is now all but mandatory for commentators to peer into the future and predict that history will revile congressional Republicans who have tied their fate to Donald Trump’s, embracing by degrees his verbal brutality, xenophobia, corruption, lawlessness, and contempt for the very institution in which they serve.
I doubt they care. Politicians worry about the next election, not history.
Another group does care, though. Supreme Court justices serve for life, and tend to consider whether they will be remembered well or ill.
How will history view Trump’s four most important judicial enablers—Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh? If the Court’s conservatives really do care about their historical legacy, they should take heed that Trump has pushed them and the Court onto very dangerous ground, and shows no sign that he will stop pushing.
As I’ve noted before, the conservative majority—those four justices plus Chief Justice John Roberts—has taken on the role of Trump’s enforcer, ensuring that controversial priorities such as the border wall and the immigration “public charge” rule take effect even before they can be fully considered by lower courts. In a dissent from the decision granting a stay in the immigration case last week, Justice Sonia Sotomayor wrote that “the Court’s recent behavior on stay applications has benefited one litigant [the government] over all others.”
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).
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.
Trump then escalated again. On February 21, Sotomayor issued her stinging dissent in a case called Wolf v. Cook County. In Wolf, a district court had blocked the implementation of the “public charge” immigration rule, which makes it much harder for people who entered the country lawfully to become citizens if they have ever used government programs such as food stamps, within its Illinois district. The court of appeals was considering the case and had not ruled. Nonetheless, the five conservatives issued an “emergency” order allowing the rule to go into effect. Sotomayor pointed out what should have been obvious: that in recent years, “the Government has come to treat ‘th[e] exceptional mechanism’ of stay relief ‘as a new normal.’”
Nothing in Sotomayor’s dissent mentioned Trump or singled out his administration as such; she focused on the conduct of the government, which is most emphatically the province and duty of the judicial department. Doing so has, in itself, no partisan or political valence. It is what judges do. Criticism of the government is not criticism of Trump. Trump is not the state.
But in response, Trump carried his war on the judiciary to the Supreme Court itself: Sotomayor “never criticized Justice Ginsberg [sic] when she called me a ‘faker’. Both should recuse themselves on all Trump, or Trump related matters! While ‘elections have consequences’, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!” In later remarks, he added: “I just don’t know how they can not recuse themselves for anything having to do with Trump or Trump-related.”
There is a theme here. When Trump or his friends are concerned with a case, the president wants to choose, or intimidate, both judge and jury; participants in the nominally independent judicial process must now fear not only his criticism but threats or even violence from his supporters.
This is, in historical terms, unheard of. The worst that Jefferson did to hostile Federalist judges was support their impeachment—an entirely constitutional process that was soon abandoned as unprincipled. Roosevelt sought to pack the Court but studiously refrained from calling out its individual members.
This is mortally dangerous constitutional territory. And my specific question is, what do Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh mean to do about it? Will they continue to jump obediently whenever Solicitor General Noel Francisco says “frog”? Will they stand by silently as their colleagues are attacked, as their Court is threatened, as the very idea of an independent bench is held up to ridicule and attempts at intimidation? Will they do this no matter how bad it gets? And if they do, who will speak up for them when their time comes?