Henningsen: Bad Judgement

Nov 28, 2018

President Trump made a mistake going after Chief Justice John Roberts in a recent Twitter storm. When the president denounced a member of the Ninth Circuit as an “Obama judge”, Roberts defended the ideal of an independent judiciary – saying that regardless of who appointed them, judges try their best to administer equal justice under the law.

It was a mild enough reproof and, many would argue, long overdue. Roberts had been conspicuously silent in the face of earlier Trump rants against the judiciary. But perhaps, as the head of the third co-equal branch our federal government, Roberts finally decided that his position obligated him to respond.

But then the president, who describes himself as a “counter-puncher”, chose to intensify his denunciations of the Ninth Circuit, so-called Obama judges, and Roberts himself. This was the mistake – because presidents who pick fights with the Supreme Court usually lose.

Thomas Jefferson battled with Chief Justice John Marshall, who was also his cousin, and came up short every time. Jefferson and his successors favored limiting federal power and appointed like-minded justices, only to find the silver-tongued Marshall repeatedly seducing them into joining majority opinions strengthening national government.

The most famous confrontation came during the New Deal, when a conservative Court majority regularly invalidated Franklin Roosevelt’s major programs. Having won two consecutive terms with stunning majorities, FDR believed the Court was impeding the will of the people. He introduced a plan to pack the Court by adding a new justice for every sitting justice over age 70.

He didn’t, however, reckon with a Congress distrustful of such extensive use of Presidential power. Not only was his court-packing plan defeated, but from that moment on Roosevelt had significant difficulty moving any domestic legislation through a Congress he had previously controlled easily.

A notable exception is Mr. Trump’s hero, Andrew Jackson, who famously refused to enforce a Court decision protecting Cherokee Indians from being forcibly removed from their ancestral lands.

Mr. Trump may believe that he can emulate Jackson’s behavior, but executive power ends with the nomination of judges. After that, Chief Justice Roberts and his colleagues on the federal bench have lifetime appointments, and history, on their side.