The President v. the courts

Judge Robart, appointed by President George W. Bush in 2003, placed a temporary restraining order (TRO) on the executive order until full arguments in the case brought against the Trump administration by Washington State and Minnesota could be heard. (On February 9, a panel of three federal judges in the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the TRO.)

During his campaign, President Donald Trump was noted for his unabashed and often controversial tweets. As President, he has continued to use Twitter as a tool to speak directly to his supporters and the country at large. In response to Robart’s TRO, President Trump expressed his disapproval of the decision:

Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!

— Donald J. Trump (@realDonaldTrump) February 5, 2017

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

— Donald J. Trump (@realDonaldTrump) February 4, 2017

In response to the Ninth Circuit ruling, he added this:

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

— Donald J. Trump (@realDonaldTrump) February 9, 2017

Folks on the right and the left have criticized the use of the words “so-called judge.” Some have even argued that the President has called into the question the legitimacy of the judiciary.

This is certainly not the first time that a President has criticized the courts. However, as National Constitution Center president and CEO Jeffrey Rosen recently told the The New York Times, “those criticisms were based on constitutional disagreements about the rulings, and it’s hard to think of a president who has challenged the motives of specific judges by name repeatedly, especially before a case is decided, or used the same kind of invective as Mr. Trump has toward the court.”

Here are some other contentious moments in U.S. history between the President and the judiciary.

President Barack Obama and Citizens United

Shortly before President Obama’s 2010 State of the Union Address, the Supreme Court, in a 5-4 decision, struck down restrictions on independent political spending by corporations and unions as violations of the First Amendment. Obama was apprehensive of the decision, to say the least. During his Address, the president said “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections…Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people.”

As the President made those remarks, the camera shifted to the members of the Supreme Court, where Justice Samuel Alito could be seen shaking his head and mouthing the words “not true.”

President Theodore Roosevelt and the Lochner Era

Sworn into office in 1901, President Roosevelt led a large progressive coalition in support of an agenda that greatly expanded the federal government and increased protections for workers across the country. This “Progressive Era” chafed against the “Lochner Era” at the Supreme Court. Spanning from 1905 until the 1930s, the period owes its name to the 1905 case of Lochner v. New York.

In the landmark 5-4 decision, the Court struck down a law that limited the number of hours a baker could work in a week, citing a “right to contract” guaranteed by the 14^th Amendment. Roosevelt made his feelings on the decision and the Court known when he ran again for President as the nominee of the newly minted Progressive Party.

In his 1910 “New Nationalism” speech, Roosevelt attacked the Supreme Court's decision in Lochner. He also accused the federal courts of undermining democracy, and called for them to be “deprived of the power” to strike down progressive legislation.

President Andrew Jackson and Native Americans

President Jackson, a Washington outsider, is the supposed author of one of the most famous quotes in constitutional history.

In the 1832 case Worchester v. Georgia, a ruling penned by Chief Justice John Marshall held that, because Native American tribes—in this case, the Cherokee—are considered sovereign nations, only the federal government has the right to establish laws related to them. In response to the decision, Jackson is said to have uttered, “John Marshall has made his decision. Now let him enforce it!” In reality, he wrote privately to a friend, John Coffee: “The decision of the Supreme Court has fell still born ... and they find that it cannot coerce Georgia to yield to its mandate.”

Still, a lack of enforcement by the federal government in the face of resistance from Georgia and other states showed a lack of respect for Native American rights and paved the way for the forced migration of Cherokee Indians known as the “Trail of Tears.”

(National Constitution Center president and CEO Jeffrey Rosen explores the nuances of Jackson’s relationship with the Court in an essay for The Atlantic.)

President Franklin Roosevelt and the Court-Packing Fight

President Roosevelt’s first term included the creation of the National Recovery Administration and the passage of Social Security; he entered a second term with a nearly unparalleled level of public support. However, the sane “Lochner Era” Supreme Court that troubled his cousin was a perennial opponent of his agenda. In the first year of Roosevelt’s second term, the Court “struck down more significant acts of Congress… than any other time in the nation’s history.”

Roosevelt responded with his infamous “court-packing” plan. In 1937, FDR sent a “Judicial Procedures Reform Bill” to Congress. The new rules would allow Roosevelt to appoint up to six new Justices to the Supreme Court, resulting in a new liberal majority that would be friendlier to New Deal legislation. In one of his famous fireside chats, the President argued that the proposal was “not attacking the Court,” but rather sought “to restore the Court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The Court itself can best undo what the Court has done.”

The plan was so controversial, even among Democrats, that the popular President’s “moral authority” was undermined, giving “lukewarm party members an excuse to abandon him.” Despite Roosevelt’s failure, the alleged “switch in time that saved nine” led to a friendlier Court anyway.

President Thomas Jefferson and Marbury v. Madison

In the landmark 1803 case Marbury v. Madison, the Supreme Court established its power of judicial review. In an act of “judicial jujitsu,” Chief Justice Marshall gave President Jefferson and his Secretary of State James Madison a short-term win—the denial of commissions to judges appointed by former President John Adams—while asserting the Court’s authority to “say what the law is.”

President Jefferson warned of what the decision in Marbury could mean not only for the future of the courts, but also for the future of the young republic. In a letter written to William C. Jarvais years after leaving office, Jefferson suggested that “to consider the judges as the ultimate arbiters of all constitutional questions” was “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” He went on:

Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps... Their power [is] more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

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