Trump v. Roberts amplifies public’s loss of trust in institutions

In his latest tirade against the judiciary, President Trump added spice to the Thanksgiving holiday weekend by calling the U.S. Court of Appeals for the Ninth Circuit “a disgrace” and District Judge Jon Tigar “an Obama judge” — an attack that provoked an unusual rejoinder from Chief Justice John Roberts, who emphasized the independence of the judiciary. Roberts repudiated the idea that there are “Obama judges or Trump judges,” prompting the president to fire back via Twitter.

Perhaps unsurprisingly, both men drew sharp criticism — the president for undermining judicial independence and an unseemly ad hominem attack, and Roberts for wading into public debate and rebuking the president.

{mosads}Trump’s acerbic words merit criticism, but his public questioning of judicial opinions does not undermine judicial independence. Equally, criticism of Roberts is misplaced. Here’s why.

Trump is not the first president to criticize the judiciary or be accused of acting in an autocratic and unconstitutional manner. That dubious distinction applied even to as great a president as Abraham Lincoln. During the Civil War, Lincoln suspended the writ of habeas corpus and was roundly condemned for acting as a despot. Things came to a head in the case of Ex Parte Merryman.

In 1861, Maryland legislator John Merryman was arrested on suspicion of being involved in a conspiracy and detained at Fort McHenry in Baltimore. His lawyers petitioned for his release and Chief Justice Roger Taney issued a writ of habeas corpus. Asked to explain Merryman’s detention, fort Commander George Cadwalader refused to appear and instead wrote explaining that the president had authorized military officers to suspend the writ. When Taney sought to arrest the commander for contempt, the marshal was not allowed into the fort.

Taney then issued an opinion that there was “no ground whatever for supposing that the president, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen except in aid of the judicial power.” Notably, Taney did not order Merryman’s release or impose any action against Cadwalader. He tamely acknowledged, “I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.” A copy of his ruling was sent to Lincoln, who ignored it.

The president’s silence was short-lived. Lincoln used his July 4th address to Congress to fire back at Taney: “Are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated?” Lincoln rejected the idea that only Congress could suspend the writ: “The Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the Framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.”

This was not the only dispute between the two. Lincoln had criticized Taney’s Dred Scott decision during his 1860 debates with Democratic nominee Stephen A. Douglas. And Lincoln used his inaugural address — after receiving the oath from Taney — to push back against the Supreme Court’s power to “irrevocably” fix government policy upon “vital questions affecting the whole people.” He rejected such judicial power, because “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

These statements unquestionably resonate today. Other presidents have espoused similar sentiments when their administrations’ policies were upended by judicial decisions; Trump is no exception. What is exceptional, however, is Trump’s sharp language. Whereas other presidents have attacked ideas, Trump often has attacked people — undermining their motivations, alleging bias and mocking them, rather than offering a constitutional critique in Lincolnesque terms. This is unfortunate; it undermines Trump’s message. Judges are not above criticism and should be held to account by elected representatives.

That brings us to Roberts. Judicial independence is an old idea: As the English cleric and jurist Henry de Bracton noted in the 13th century, “The king ought not to be subject to man but to God and the law, because the law makes the king.” In the centuries since, judges served at the pleasure of the king and were sacked when their opinions displeased the crown. It took the Act of Settlement (1701) and other developments for judicial independence to take root in England. William Blackstone noted in “Commentaries on the Laws of England” that liberty “cannot subsist long in any state, unless the administration of justice be in some degree separated both from the legislative and also from the executive power.”

America’s Founding Fathers enshrined the separation of powers and judicial independence in the U.S. Constitution. Roberts’ words were aimed at asserting these principles, perhaps to preserve public confidence in the judicial branch at a time when institutions are losing trust. Trump’s dismissal of Tigar as “an Obama judge” conveyed the idea that judicial decisions are merely partisan actions with the gloss of legalese.

Nonetheless, despite Roberts’ protestations, the idea of “Obama judges and Trump judges” is entrenched in the public consciousness. The chief justice’s statements won’t change that. And it is not accidental that parties seek to pick their judges when possible; that experts predict judicial decisions based on political leanings; and that court appointments affect elections.

Unless judicial appointments are depoliticized and the confirmation process ceases to be used for vicious partisan attacks, public confidence will remain low. Trump v. Roberts won’t change that.

Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.