Judicial Independence in the Age of Trump

Stephen M. Orlofsky

“A bad high school student would understand this.” That is what President Donald J. Trump had to say about the Ninth Circuit, which was charged in Feb. 2017 with determining whether a district court’s order blocking the president’s travel ban should be reversed. Coming less than a month into his presidency, it was just one of many critical comments made by President Trump about the nation’s federal Judiciary since he took office. As the tweeting public knows, the president has criticized federal judges for political bias, and has gone so far as to blame them for future terrorist attacks.

As much as these criticisms may seem unprecedented, friction between the judicial and executive branches of the federal government is not new.

In response to the Supreme Court’s landmark decision in McCulloch v. Maryland, President Thomas Jefferson wrote privately that the judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”

President Andrew Jackson is reported to have said, “John Marshall has made his decision, now let him enforce it,” regarding an opinion by the Supreme Court on Cherokee Indians. President Franklin Roosevelt is known for having attempted to “pack” the Supreme Court when the justices were not as amenable to his New Deal program as he would have liked.

Even President Barack Obama, a scholar of constitutional law, called out the Supreme Court over its Citizens United decision during his 2010 State of the Union Address.

Despite its disputes with presidents, the federal Judiciary has remained independent since its inception—and, in this author’s view, it will remain so. It is true, never before has a president so vigorously attacked the Judiciary, alleging political bias, or, in the case of Judge Gonzalo Curiel, the inability to be fair because of his “Mexican heritage.” But in the Age of Trump, these types of attacks may be the new normal. While the tone of these attacks on the Judiciary is unprecedented, the U.S. Constitution was designed to ensure that the federal Judiciary remains independent, so it can function, even when under hostile fire by the president or Congress.

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“Judicial Independence in the Age of Trump,” by Stephen M. Orlofsky was originally published in the June 2018 issue of New Jersey Lawyer, a publication of the New Jersey State Bar Association. Reprinted with permission.