trending:

Just In

View all Load more
The Judiciary

Silent no more: It’s time for the courts to step up to Trump

by Joel Cohen - 02/06/17 1:00 PM ET
by Joel Cohen - 02/06/17 1:00 PM ET
Getty Images

The executive branch fighting with the judiciary is not a new, Trump-era issue.

Indeed, the history of our Republic brims with dramatic episodes in which federal judges defied presidents who sought to exercise their power improperly, sometimes even violating the Constitution. The judiciary — “The Least Dangerous Branch” of government, as described by Alexander Hamilton in The Federalist — has occasionally morphed into the most dangerous branch for a wayward-thinking president.  

{mosads}Generally, judges will only “speak out” when wearing their robes — that is, when they are acting in an official capacity. Judicial mores, as they sometimes say, preclude judges from public comment outside the four corners of a case specifically assigned to them. Speaking out on presidential or congressional excesses that may reach them in their official capacity could possibly result in disqualification, the judge being seen as having prejudged the issues. As a nation, we don’t want to impair a judge’s ability to issue rulings on the merits — certainly not those that might permanently enjoin enforcement of a president’s executive order or act of Congress.

 

Before last week, this piece would have argued that judges who don’t have a particular issue pending before them should indeed speak out on broad issues. Shouldn’t a judge be able to talk about his general view of the death penalty, or “stop and frisk,” or gun control? Yes, there would be would be a pitfall in a Supreme Court justice doing so — indeed, a recusal might create a 4-4 split. But at the lower court levels, such as the district court and the court of appeals, if a judge goes too far in his extrajudicial statements and needs to be recused from a case, there will always be another judge available who can take over.

And, before last week, this piece would have also suggested how well situated federal judges are to comment on how a particular law or protocol is being enforced. It would have argued that judges, unencumbered by cases pending before them, should be able, and willing, to enter that “marketplace of ideas” that former Justice Louis Brandeis found so compelling for a free society. It would have professed how a judge’s experiences on the bench might make him or her better equipped than perhaps anyone else to preach issues of the day. 

But this past week has changed the focus dramatically.

When four judges first issued orders to temporarily restrain the U.S. government from enforcing the president’s “Muslim ban” — or, as his administration prefers to call it, “travel ban” — Trump did not immediately denounce the judiciary publicly. That, of course, fell apart Saturday after Seattle District Court Judge James Robart issued his decision Friday to impose a nationwide hold on the order.

The president’s tweets were fast and ferocious, with personal attacks that make Trump’s denouncement of Judge Gonzalo Curiel during the campaign seem almost tame. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” 

And in an unwillingness to understand, accept or perhaps even abide our nation’s separation of powers, the president later tweeted: “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?” 

We can only imagine what Trump will say/tweet if the Ninth Circuit panel also rules against him — even on the temporary basis as immediately pends as this goes to print.

A president’s attempt to influence the judiciary is not unprecedented — Franklin Roosevelt, albeit unsuccessfully, attempted to increase the size of the Supreme Court so that he could pack it with justices who would be more sympathetic to his New Deal policies. 

But personally insulting judges, and fomenting public fear, is unacceptable. 

We are at a place in history where the public needs the best available communicators it can find against an administration that appears to be thoroughly willing to test the outer boundaries of our Constitution. When legislators speak up, unless they are willing to speak against their own party (and perhaps, even then), they are treated by the administration as partisans with skin in the game. And the media, too, is viewed by this president as an attack dog against him.

So the issue of whether judges can or should speak out about the law must wait for another day. The administration’s attacks are too important. The elephant in the room is no longer the elephant in the room, and judges need to respond.

Judges, as a group — particularly those who share the same policy views as the president — need to stand up to tactics designed to personally intimidate, harass and, yes, bully those judges who read the law and Constitution as requiring them to rule against the executive branch on certain issues, such as the executive order immediately in question. 

Federal judges are not easily bullied or intimidated; it’s time for them to demonstrate that these degrading tactics will not be tolerated. Doing that may be the most important thing the judiciary can do at this moment — one that overlooks the cliff of a potential national crisis. To allow this to go unchecked and unchallenged, more than anything, normalizes an unhealthy disrespect for the judiciary — as if to enable members of the litigating public to say, “If the president can treat the judiciary this way, why can’t I?”

 

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications. Dale J. Degenshein of Stroock assisted in preparing this article.

The views of contributors are their own and are not the views of The Hill.

Tags John Kerry

Copyright 2023 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Top Stories

See All

See All