The President Learns About Separation of Powers

It took all of two weeks for President Donald Trump to mount his first verbal assault on the federal judiciary. In early February 2017, a federal judge in Seattle, James Robart, halted the travel ban the Trump administration had hastily implemented a week earlier based on an executive order from the president, causing chaos, and then protests, at airports nationwide. Trump’s furious response was nearly immediate: “The opinion of this so-called judge,” he tweeted early on a Saturday morning, “which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

Three more tweets about the decision followed soon after. The next day, Trump tweeted an accusation that the judge was imperiling the nation and told the public, “If something happens blame him and court system.”

The president’s vitriolic response was illustrative in two key ways: First, it was one of many early indications that Trump would have little patience for the norms that have long governed Washington. And second, it served notice that there would be no discernible difference between Trump the presidential candidate, who had launched racist attacks on the federal judge Gonzalo Curiel after an unfavorable decision, and Trump the president.

Many presidential administrations have been on the losing side of a court decision, and some have responded with pointed criticism. In 2010, President Barack Obama called out the Supreme Court for its decision in the Citizens United campaign-finance case during his State of the Union address while the justices were seated directly in front of him in the Capitol chamber. “With all due deference to separation of powers,” Obama said, “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.” Yet Trump did far more than criticize Judge Robart’s decision on its legal merits. He called into question the very legitimacy of both the judge and his ruling, and he laid the predicate for blaming any kind of violence on the entire judiciary—an equal branch of the federal government.

Trump’s outburst reverberated widely. Even his first nominee to the Supreme Court, Judge Neil Gorsuch, criticized the comments as “demoralizing” and “disheartening” during his confirmation process. But the president’s impulse to lash out at unfavorable court rulings would not be tempered. Throughout his first two years in office, Trump would direct particular ire at the San Francisco–based Ninth Circuit Court of Appeals for its rulings against administration policies. And when, in November 2018, the president dismissed a decision from the Ninth Circuit as coming from “an Obama judge,” he drew an extraordinary public rebuke from Chief Justice John Roberts. In a rare statement responding to the president, Roberts reasserted the independence of the judiciary and said the courts “do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Characteristically, Trump did not back down, tweeting a retort to the chief justice that said the Ninth Circuit was “a complete & total disaster.”

The tangible impact of Trump’s attacks on the judiciary has been more limited than some initially feared. His administration abided by Judge Robart’s injunction in those early weeks, eventually rewriting its travel ban twice before the Supreme Court upheld its constitutionality. It has similarly responded to other legal defeats as the system intended—through appeals within the federal courts themselves. But little by little, tweet by tweet, Trump is contributing to a shift in how the judiciary is perceived as an institution, from one prized for its independence from the partisan brawl to one that’s no less political than its sister branches of government.

Russell Berman is a staff writer at The Atlantic, where he covers politics.

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