Trump Takes Aim at the Independent Judiciary

The Republican candidate isn’t directly attacking democracy—but he’s targeting the institutions that sustain it.

Richard Drew / AP

Commentators often call Donald Trump a threat to American democracy. That’s not quite right. Trump is a threat to the institutions that keep American democracy liberal. It’s unlikely that Trump would strip Americans of the right to elect their leaders. It’s more likely that he’d undermine those institutions that restrain the power of the leaders Americans elect. He’d undermine the institutions that limit presidential power and safeguard individual rights and equality under the law.

One such institution is the press. In recent weeks, Trump has called for investigating Washington Post owner Jeff Bezos—who he claims has been “getting away with murder, tax-wise” and has a “huge antitrust problem”—because of the Post’s critical coverage of his campaign. Trump’s close ally, Roger Stone, has said that, “when Donald Trump is president, he should turn off” CNN’s “FCC license.” Trump has repeatedly called the journalists who cover him “scum” and barred news organizations that cover him critically from attending his public events.

Now he’s going after the judiciary. In San Diego over the weekend, Trump publicly attacked Gonzalo Curiel, the judge who is hearing the lawsuit against Trump University. After first noting that Curiel “happens to be Mexican” (he was actually born in Indiana to Mexican immigrant parents), Trump declared that, “It is a disgrace. It is a rigged system … This court system, the judges in this court system, federal court. They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace.”

To understand how extraordinary Trump’s attack on Curiel is, it’s worth remembering what happened when Barack Obama, in his 2010 State of the Union address, criticized the Supreme Court’s ruling in the Citizens United case. As the justices looked on, Obama declared that, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” Rush Limbaugh said Obama’s comments reflected a “profound disrespect for the separation of powers” and “a thugocracy style” befitting a “banana republic.” Chief Justice John Roberts himself called Obama’s remarks “very troubling.”

But Obama didn’t attack the justices’ integrity. And he didn’t suggest they be punished. Trump, by contrast, called Curiel a “disgrace,” who is presiding over a “rigged system.” And he suggested that, “they ought to look into Judge Curiel.”

It’s easy to imagine what will happen to Curiel now. Like the journalists Trump has publicly slammed, he’ll receive an avalanche of personal, bigoted abuse from Trump’s supporters, including, quite possibly, death threats. This may, in and of itself, give future judges second thoughts about incurring The Donald’s wrath.

Were Trump president, he’d have other methods of intimidation at his disposal. Instead of merely suggesting that, “they ought to look into Judge Curiel,” he could order his Justice Department to do it. To be sure, Democrats, liberal journalists, and principled conservatives would howl. But given the partisan consolidation around Trump since he locked up the nomination, it’s likely that many Republicans would look the other way, or suggest that what Obama did was worse. Already, pro-Trump Republicans like the CNN commentator Jeffrey Lord are echoing Trump’s attack, calling the Trump university trial “rigged,” and suggesting that Curiel, because he received a reward from a Latino lawyers’ group, has a “serious ethnic axe to grind.”

Contrary to Trump’s assertion, America’s federal “court system,” although hardly perfect, is not “rigged.” If litigants feel they are treated unfairly, they can appeal. And the judiciary system is certainly not rigged against white billionaires by Latinos “with an ethnic axe to grind.”

But the more Americans think the courts are rigged, the stronger Trump’s position. The more he convinces his supporters that judges, like reporters, are corrupt and self-interested, the less public legitimacy they enjoy. And the less public legitimacy they enjoy, the less they can check Trump’s power.

On the right, the most common justification for supporting Trump is that he’ll appoint conservatives to the Supreme Court. That’s naïve. On issues like abortion, gun control, and gay rights, Trump has been wildly inconsistent. Where he’s been more consistent is in his willingness to denigrate anyone who gets in his way. He’s less likely to the challenge federal judiciary’s progressivism than to challenge its independence. Gonzalo Curiel may be the first judge he’s threatened on his way to the White House. But he’s unlikely to be the last.