“John Marshall has made his decision: now let him enforce it!”
And with that, President Andrew Jackson coldly rejected the Chief Justice of the United States Supreme Court and his decision on Worcester v. Georgia, a case revolving around Native Americans.
Today President Donald Trump has the political and media world agog because, in response to a Washington State federal judge ruling against his travel ban, Trump tweeted four different times as follows (and in order):
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
“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.?”
“Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
“I have instructed Homeland Security to check people coming into our country VERY CAREFULLY. The courts are making the job very difficult!”
The world of political and media elites was aghast. As in: “OMG!!!! The president attacked a federal judge!” This outrage over a president attacking a federal judge is pure bunk, utterly bereft of either historical memory or even just plain short-term memory.
All too utterly typical of this bunk was this by MSNBC’s Joe Scarborough in the Washington Post:
Trump’s reckless shot at a federal judge
Wrote the former GOP Congressman in breathless tones of alarm, bold print supplied:
When a president tweets insults at a Hollywood star, the dignity of his office is tarnished. When a commander in chief uses Twitter to attack a loyal military ally, America’s friends across the globe become unsettled. But when a president uses social media to question the legitimacy of a federal judge following an inconvenient (and temporary) outcome, that is simply unacceptable. From Marbury v. Madison to United States v. Nixon, our federal courts’ power to interpret the Constitution has been sacrosanct. As Chief Justice Warren Burger wrote in U.S. v. Nixon, the concept of checks and balances endures because it has remained (to quote Marbury) “the duty of the judicial department to say what the law is.”
Wow. Historical whoppers don’t come much bigger than that.
As indicated, President Jackson — who to the best of my knowledge had no inkling as to what social media was other than a conversation with another living human being — was well out there with his feelings on the decision by a man seen today as one of the nation’s greatest Court members.
Jackson was far from alone with presidential utterings of a withering disdain for a sitting federal judge. Mr. Scarborough and others (like Senate GOP Leader Mitch McConnell) may have noticed that marble structure on the mall celebrating another president — Abraham Lincoln. Lincoln had his own disdainful opinion of another Chief Justice — and as a matter of fact it was the very Chief Justice appointed by none other than President Jackson. That would be Chief Justice Roger Taney. Taney, of course, is historically infamous for trying to write slavery into the Constitution in Dred Scott v. Sandford. Lincoln had nothing but scorn for Taney and made his views both public and crystal clear. In the famous 1858 Lincoln-Douglas debates for an Illinois seat in the U.S. Senate, Lincoln accused Taney of literally being a member of a pro-slavery conspiracy.
But the most famous Lincoln-Taney showdown would begin on March 4, 1861 — when the 83-year old Chief Justice Taney was required to swear in Lincoln to the presidency. Once he had taken his oath, Lincoln turned to give his inaugural address — unleashing a blistering attack on the Chief Justice as Taney sat mere feet away. Among other things Lincoln said this, bold print supplied:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions 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.
In true Lincoln fashion, having labeled the Court as potentially issuing “evil” and “erroneous” decisions and adding that if policy were to be made by the Court this would mean “the people will have ceased to be their own rulers”, Lincoln tried to temper his repeated blows by saying:
Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
In other words, the sixteenth president felt he had made his point, and after the fact offered some verbal balm for the wound. But there was more, much more to come. It wasn’t long before Lincoln, in his bid to save the Union, suspended habeas corpus — an action that infuriated Taney. Taney struck back in a case known as Ex parte Merryman that said Congress alone had the power to suspend habeas corpus. Lincoln’s response? He ignored Taney’s ruling. On an October day of 1864 the Chief Justice died — and the President of the United States, while eventually showing for the funeral, issued no public statement. Nor did he accompany the Chief’s body to its burial.
Then there was the case of President Theodore Roosevelt, who appointed his friend Judge Oliver Wendell Holmes to the Supreme Court. TR wanted a Justice who would oppose the “big railroad men and other members of large corporations” and was certain that he had his man in his friend Holmes. A friend of both TR’s and Holmes, Massachusetts Senator Henry Cabot Lodge, agreed, saying of Holmes that he was “our kind right through.”
Until, that is, the case of Northern Securities Co. v. United States, a railroad monopoly case. Holmes found for the railroads — infuriating Roosevelt. Who had no qualms in attacking his suddenly former friend the Supreme Court Justice. Said the President of the United States of this federal judge: “I could carve out of a banana a judge with more backbone than that.”
TR’s sentiments about Supreme Court jurists was matched — in spades — by his distant cousin Franklin. FDR was so infuriated by repeated decisions of the Supreme Court that rendered parts of his New Deal unconstitutional that he fully shared the labeling of the Court as “nine old men.” But unlike TR, FDR was determined to retaliate with more than just a public denunciation of the Court. Instead, newly re-elected in a 1936 landslide, FDR cleverly — or so he thought — had legislation introduced in Congress to expand the Court from nine members to fifteen. Which, if approved, would give him six brand new appointees on the Court and a guarantee of a Court giving a thumbs up to the New Deal. To his shock, the “court packing” plan as it quickly came to be known was given a thumbs down by a Democratic Congress. FDR fumed, but his head-on deliberate attack on the Court had failed.
In 1953, President Eisenhower appointed California Republican Governor Earl Warren to be Chief Justice of the United States. Years later? Eisenhower, after observing Warren in action, assessed his own judgment in appointing Warren this way: “Biggest damnfool mistake I ever made.”
And who can forget the delight among Democrats and media elites when President Obama stood in front of a Joint Session of Congress and denounced the Court to its face over its decision in the Citizens United campaign funding case? As reported here by the Los Angeles Times:
Obama’s State of the Union address: Criticism of the Supreme Court campaign finance ruling
With the black-robed justices of the Supreme Court sitting not far away, President Obama took aim at a recent court decision which said that corporations could spend as much as they wanted to sway voters in federal elections.
“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign companies — to spend without limit in our elections,” Obama said tonight. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”
Television cameras captured Justice Samuel Alito silently mouthing the words “not true” as he shook his head in disbelief at the frontal assault on the Supreme Court Justices being attacked as they literally sat in front of the President on national television. As if that weren’t enough of an attack, Obama had issued a statement from the White House directly attacking the Court as follows:
Our democracy works best when everyone’s voice is heard, and no one’s voice is drowned out. But five years ago, a Supreme Court ruling allowed big companies — including foreign corporations — to spend unlimited amounts of money to influence our elections. The Citizens United decision was wrong, and it has caused real harm to our democracy. With each new campaign season, this dark money floods our airwaves with more and more political ads that pull our politics into the gutter. It’s time to reverse this trend. Rather than bolster the power of lobbyists and special interests, Washington should lift up the voices of ordinary Americans and protect their democratic right to determine the direction of the country that we love.”
Which brings us to President Trump and those tweets about that Bush 43 appointee U.S. District Judge James L. Robart. Whether the president in question was named Jackson, Lincoln, Theodore or Franklin Roosevelt, Dwight Eisenhower or Barack Obama, President Donald Trump’s tweets about Judge Robart are nothing if not merely the latest in a line of presidential precedents. Each in their own way — Lincoln perhaps most notably as, like Trump, his challenge of a judge came during a time of war — have been nothing if not similarly direct in their criticisms of sitting judges.
The idea that Trump’s attacks on a sitting federal judge are somehow out of the presidential ordinary is, as with a lot of criticism of the new president, pure bunk.
And that’s the nice way of saying it.