The Curious Incident of Trump and the Courts: Interbranch Deference in an Age of Populism
Published Online: Dec 31, 2018
Page range: 237 - 256
DOI: https://doi.org/10.2478/bjals-2018-0011
Keywords
© 2018 Bruce G. Peabody, published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
Given President Donald Trump’s generally non-deferential and even antagonistic posture towards national political and governing institutions, why hasn’t his administration produced greater tension with respect to judges, courts, and established norms of judicial independence? To be sure, the President has prominently tussled with the federal judiciary in connection with immigration policy (especially regarding the administration’s so-called “travel ban” on immigrants and refugees from majority-Muslim countries), and he has accused courts of being “slow and political.” Brennan Center for Justice, Merrit Kennedy, Derek Hawkins,
But, on the whole, these reproaches have represented the exception rather than the rule. The President has stepped somewhat lightly around the courts, especially in comparison with his more aggressive posture towards other institutions, such as the press and intelligence community. At least in the first two years of the Trump White House, sustained opposition to courts is the proverbial dog that didn’t bark—a surprising outcome given numerous factors inclining us towards heightened executive-judicial tension, and the clamorous noises otherwise emerging from the bully pulpit.
The following analysis tries to both document and account for this puzzle. I consider and probe a variety of hypotheses for why an iconoclastic and populist President Trump, otherwise suspicious if not outright hostile to governing institutions and their elite leaders, appears to be reticent to take on the judiciary, at least in any consistent or sweeping manner. Ultimately, I contend, a plausible explanation for the President’s unexpected (and admittedly fragile) institutional comity can be traced to Trump’s personal history of relying on legal safeguards and authority, and the complex and still bubbling stew of partisan and ideological uncertainty about the future direction of courts and parties. More broadly, this article provides a framework for understanding the separation of powers in an age of hyper-partisanship and anticipating the consequences of the inevitable future collisions between the administration’s political imperatives, the courts’ judgments, and the broad course of public policy hashed out in the nation’s capital and fifty states.
An initial expectation that the Trump administration’s relations with courts are likely to be strained can be traced to two primary sources: broad trends in interbranch politics, fueled especially by deepening partisanship over the past several decades, and factors more closely tethered to the President’s distinctive governance style.
We might first observe that the twenty-first century ushered in an era of greater politicization with respect to the judiciary, that is, a greater willingness by public officials (especially Republicans) to place judges, cases, and other judicial issues at the forefront of policy debates, national political discourse, and campaign rhetoric and fundraising appeals. Mark C. Miller, The View of the Courts from the Hill (2009); C. Boyden Gray et al., Panel Discussion: 543 U.S. 551 (2005). Dana Milbank,
But criticism of the courts for political gain has been more prevalent and systematic. Consider that from 2004-2008, four out of five of President George W. Bush’s State of the Union addresses included prominent criticism of the courts, including his 2008 warning about judges who rule by “the whim of the gavel” rather than “the letter of the law.” The Politics of Judicial Independence: Courts, Politics, and the Public 8 (Bruce Peabody ed., 2011) (hereinafter The Politics of Judicial Independence). Miller, The Politics of Judicial Independence, Katie Benner, Michael D. Shear & Ron Nixon,
These claims feed directly to a second, interrelated point: the nation’s thickening atmosphere of hyper-partisanship also makes executive-judicial confrontations more likely. Trump came to power in an era of deepening partisan division. Marc J. Hetherington & Thomas J. Rudolph, Why Washington Won’t Work: Polarization, Political Trust, and the Governing Crisis (2015). Sarah A. Binder, Stalemate: Causes and Consequences of Legislative Gridlock (2003); Marc J. Hetherington & Jonathan D. Weiler, Authoritarianism and Polarization in American Politics (2009); Frances E. Lee, Beyond Ideology: Politics, Principles, and Partisanship in the U.S. Senate (2009); Keith T. Poole & Howard Rosenthal, Congress: A Political-Economic History of Roll Call Voting (1997); Sean M. Theriault, Party Polarization in Congress (2008). Others have contended there is a comparable partisan and ideological split in the public. See, e.g., Alan J. Abramowitz, The Polarized Public: Why American Government is so Dysfunctional (2012); Shanto Iyengar & Sean J. Westwood, Charles Gardner Geyh, When Courts and Congress Collide: The Struggle for Control of America’s Judicial System (2008); Hetherington & Rudolph, Adam Liptak,
Party Platforms Highlighting Judicial Issues and Cases (2000-2016).
| Year | Democratic Platform | Republican Platform |
|---|---|---|
| - criticism of Supreme Court ruling on partial birth | ||
| abortion | ||
| - “right to privacy” and abortion | - | |
| - | - criticism of “exclusionary rule” | |
| - | ||
| - support for student initiated prayer | ||
| - criticism of “judicial activism” | ||
| - | ||
| - | ||
| - protecting Defense of Marriage Act from courts | ||
| - partial birth abortion | ||
| - student initiated prayer | ||
| - immigration decisions making “deportation so difficult” | ||
| - | ||
| - | ||
| - | - death penalty | |
| - abortion | ||
| - | ||
| - ROTC access case | ||
| - | ||
| - gay marriage/DOMA | ||
| - | ||
| - public display of Ten Commandments | ||
| - student prayer | ||
| - | ||
| - | ||
| - using courts to protect | ||
| immigration rights | - | |
| - No regulation of internet speech | ||
| - | ||
| - abortion | ||
| - criticism of using foreign law in the courts | ||
| - | ||
| - criticism of courts’ role in | - | |
| mass incarceration | - | |
| - praise for drug courts and | - criticism of judicial activism | |
| veterans’ courts | - reliance on foreign law | |
| - praise for | - support for | |
| - | ||
| - criticism of | - support for | |
| - | ||
| - criticism of |
With respect, specifically, to the Trump administration’s attitudes towards the judiciary in this atmosphere of heightened partisanship, we can further posit that tensions between the executive branch and courts are likely to intensify when a president inherits a court system that has been staffed by predecessors of a different party and ideological orientation. Robert A. Dahl, Elliot Slotnick, Sara Schiavoni & Sheldon Goldman, After the 2016 elections, Republicans also had 33 state legislatures in their control. Eric Boehm,
Figure 1
Percentage of President’s nominees who were appointed (District Court and Circuit Court judges): 95th through 114th Congresses (1977-2017).
Beyond these general assertions about why recent political trends set up the Trump administration for contentious relationships with courts, we can isolate additional aggravating factors more idiosyncratic to the incumbent president. The first of these is Mr. Trump’s observed personalization of politics—a phenomenon with several dimensions.
The President and his subordinates frequently conflate political legitimacy and proper public service with individual loyalty. Michael McFaul,
…I love the President, and I’m very, very loyal to the President. And I love the mission that the President has, okay? Since the early days of the campaign…I saw the love that the people had for the President. The White House,
Numerous commentators have seized on the continuing centrality of this loyalty value for a man who built both his presidential campaign (and prior business empire) on family and personal connections. Rob Crilly,
The other, closely related aspect of the President’s personalization approach is a tendency to entangle policies and people—to treat as fungible the perceived (de)merits, value, and feasibility of different program goals and the alleged virtues (or vices) of the specific individuals backing them. President Trump has expressed this idea with respect to himself on numerous occasions, perhaps most famously in his acceptance speech at the 2016 Republican National Convention (RNC). Here he declared to the American people “I am your voice” for delivering change to everyone who has “been neglected, ignored, and abandoned” and “crushed by our horrible and unfair trade deals.” As Trump further explained, only he was qualified to repair a “rigged” political system: “[n]obody knows the system better than me, which is why I alone can fix it.” Full transcript available at:
After being inaugurated, the President continued with this theme and celebrated political allies by recognizing their individual attributes as much as their skill, experience, or policy acumen. Thus he praised Attorney General Jeff Sessions as “an honest man,” Fox News talk show host Sean Hannity as a “great guy (with great ratings)!” and lauded Supreme Court nominee Neil Gorsuch as someone who would fill the “mold” of deceased Justice Antonin Scalia. This personalization approach has also extended to the President’s opponents. Indeed, many of the President’s major early policy initiatives have targeted legislation or programs identified with his predecessor, including efforts to repeal the Patient Protection and Affordable Care Act (“Obamacare”), the termination of the Deferred Action for Childhood Arrivals (DACA) program, and the reversal of Obama administration criminal justice reform efforts. These moves have been justified less in terms of establishing a new policy path than in eradicating the destructive choices of others, including Mr. Obama, whom Trump called “perhaps the worst president in the history of the United States.” Donald J. Trump,
This blurring of personal and political authority is likely to trigger friction with courts for several reasons. Perhaps most obviously, a personalized approach will tend to see unfavorable court judgments as direct attacks, or instances of disloyalty, rather than principled and impersonal judgments of law. More generally, individualized and personality-driven claims to rule are at odds with both the notion that ours is a “government of separated institutions sharing powers” and customary understandings of the rule of law. Richard E. Neustadt, Presidential Power and the Modern Presidents (1960); Joseph Raz, The Authority of Law: Essays on Law and Morality (1979). Jeremy Diamond,
Interestingly, in those instances where the President has pushed most aggressively against individual judges, independence norms, and regular judicial procedures, these personalization tactics have been especially prominent. Thus, President Trump (in)famously questioned the capacity of Federal District Court judge Gonzalo Curiel to hear a case involving Trump University fairly, on the grounds that the judge was compromised by his purported “Mexican Heritage.” Nina Totenberg,
In a somewhat related vein, critics have charged that the President’s pardon of Arizona Sheriff Joseph Arpaio (for a federal contempt of court citation) short-circuited the usual pardoning process (and Department of Justice guidelines) and undermined judicial authority in order to reward “a political friend and supporter.” L.A. Times, Yoni Appelbaum,
The President’s well-documented populism is another vector for conflict with courts. While populism is an open, substantively thin ideology, it is distinguished by an anti-elitism in general, and skepticism toward establishment officials and institutions in particular. Cas Mudde & Cristóbal Rovira Kaltwasser, Populism: A Very Short Introduction (2017). Jan-Werner Müller, What Is Populism? (2016).
Trump’s articulation of these themes has played a steady part in his campaign and governing rhetoric. For example, his 2016 RNC speech targeted the “[b]ig business, elite media and major donors” who supported Secretary of State Hillary Clinton and betrayed the “American People.” These “special interests… rigged our political and economic system for their exclusive benefit.” In opposition, Trump promised to serve as a champion for ordinary “[p]eople who work hard but no longer have a voice.” Katherine Faulders & Alexander Mallin,
This populist strain should also have implications for the administration’s treatment of the judiciary. Most obviously, judges and court systems are an enticing target for the President’s ongoing disruption of the status quo. This is especially likely for federal courts, staffed by highly educated professionals who are structurally sequestered from political and electoral forces. Indeed as Slotnick, Schiavoni, and Goldman note, the profile of Obama’s judicial appointees makes them especially salient as populist targets. After all, “some 44% of the Obama appointees had a prestige legal education,” a figure considerably higher than his immediate predecessors. Slotnick et al., Alexis de Tocqueville, Democracy in America (Harvey C. Mansfield & Delba Winthrop, trans., Univ. Chicago Press 2000) (1835).
So far, we have identified a number of factors that would seem to place the Trump administration on a slanted political plane leading straight to confrontations with courts. Increased politicization of the judiciary, deepening partisanship (including a bench closely divided internally by partisan appointments), and, finally, distinctive attributes of the President himself (in particular his personalization of politics and populist flair) all seem to set us up for interbranch confrontations that could challenge long-held norms of judicial independence. Ming W. Chin, Rebecca Ballhaus,
So where is the evidence for our anticipated spike in executive-judicial skirmishes? As noted, the 2016 Republican platform was often unsparing in its critique of specific court decisions and judicial “activism.” Moreover, the Trump administration has periodically and aggressively responded to what it sees as unfavorable rulings, especially where the courts have issued judgments against the President’s immigration and travel restrictions (and, by extension, decisions that purportedly impede his anti-terrorism initiatives). Brent Kendall, Philip Rucker,
Notwithstanding these and other challenges, however, we have good reasons for thinking they represent less than meets the eye. A review of the official White House search engine finds, for example, no administration reference to “judicial activism” or “legislating from the bench,” two charges that were popular under recent prior Republican administrations. More systematically, if we look at the President’s favored communication method, Twitter, we find relatively infrequent references to courts and judges, and, particularly if we exclude tweets targeting the travel ban rulings, a mix of positive and negative statements. Table 2 summarizes the President’s tweets over his first sixty weeks in office in which he mentions, respectively courts, judges, or Justices on the one hand, and Congress and lawmakers on the other.
Trump Twitter References to Courts and Congress (January 20, 2017-March 15, 2018).
| Search Terms: | Neutral/Descriptive references | Positive references | Negative [without references travel ban references] | Total |
|---|---|---|---|---|
| “court;” “judge;” | 47% | 18% | 35% [14%] | 100% |
| “justice” | n=23 | n=9 | n=17 [n=7] | n=49 |
| “Congress;” | ||||
| “Senate;” | 32% | 35% | 32% | 99% |
| “Representative;” | n=75 | n=81 | n=75 | n=231 |
| “Sen.;” “Rep.;” |
On the whole, these results do not give us a picture of a president spoiling for a fight with the judiciary. Indeed, the President effusively praised deceased Supreme Court Justice Antonin Scalia, as well as his successor, Trump’s appointee Neil Gorsuch (whose seating the President regularly identifies as one of his signature accomplishments). Three months after Gorsuch joined the Court, the president followed a nearly identical pattern with his next nominee to the nation’s highest court. Thus, he hailed both retiring Justice Anthony Kennedy (as a public servant associated with “incredible passion and devotion…[and a] lifetime of distinguished service”), The White House,
Even some of the President’s “neutral” or non-valenced remarks about the judiciary imply a willingness to recognize the courts, and especially the Supreme Court, as a legitimate if not authoritative forum for conflict resolution. As the President indicated in a February 20, 2018 tweet, he hoped Republicans would challenge a Pennsylvania redistricting map, taking it “all the way to the Supreme Court, if necessary.” Donald J. Trump (@realDonaldTrump), Twitter (Feb. 20, 2018, 5:11 AM), Donald J. Trump (@realDonaldTrump), Twitter (Mar. 12, 2018, 6:22 AM),
As indicated, all of this is somewhat surprising. Given the heated state of judicial politics generally, and President Trump’s enthusiasm for battling other institutions of government and civil society more specifically, why hasn’t the current administration fostered a less hospitable landscape for judges, courts, and judicial independence?
One initial response is not very satisfying: the President is reluctant to take on a branch that still enjoys relatively high diffuse, institutional support, especially relative to Congress and even the executive branch. Gregory A. Caldeira, Clare Malone,
A related, and more plausible hypothesis is that the administration is somewhat reluctant to take on the judiciary in any sustained way because it understands, on some level, that independent courts, judicial review, and even periods of judicial activism (understood here as regular court invalidation of government action) may serve executive branch interests. In the scholarly literature, such an argument usually takes one of two basic forms. First, relatively strong and independent courts could be a way of navigating controversial and crosscutting party issues. As Mark Graber has explained, elected officials may look to the judiciary to resolve or temper disruptive political topics, with the hope that courts will remove the underlying contentious issue by withdrawing it to a judicial forum supposedly beyond the reach of ordinary politicians. Mark Graber,
A second take on the judiciary as incipient ally model understands the courts as a “vehicle of regime enforcement” or potential institutional capture. Whittington, Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to George Bush (1997); Keith E. Whittington, Political Foundations of Judicial Supremacy The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007). See also Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004); Howard Gillman, Whittington, Charlie Savage,
But both of these explanations for the (relative) comity of the Trump administration towards the judiciary are imperfect. With respect to the “issue displacement” thesis, we might note that the President has energetically Jonathan D. Moyer & David K. Bohl,
As to whether Trump might be reluctant to target the judiciary on the grounds that it can help secure his party’s legacy in the face of future electoral defeats, this case is stronger but still uncertain. Undoubtedly, there is some evidence the administration is pursuing this sort of long game with its appointments strategy. Savage, Whittington,
For these and other reasons, some scholars have suggested Trump might be better seen as what Skowronek calls a “disjunctive” president—a Chief Executive with little allegiance to the prevailing governing coalition, but a figure who tries, nevertheless, to hold it in place in the face of building political strains. Skowronek, Scott Lemieux,
Given the shortcomings of these explanations, we need to adopt a different tack. At an individual level, we might speculate that Trump’s hesitancy to criticize courts could be a byproduct of familiarity. While the President has never sat in public office before occupying the White House, he has repeatedly relied on lawyers and the judiciary in his prior business career and personal life. His administration’s zealous use of nondisclosure agreements amongst aides and other government employees suggests a comfort with litigious protections as a partial substitute for interpersonal trust. Josh Dawsey & Ashley Parker,
Moreover, although he has been the target of thousands of lawsuits, Trump has frequently prevailed, and, more generally, has turned to courts, litigation, and other legal transactions to protect his financial and individual interests. Ben Terris, Donald J. Trump & Tony Schwartz, Trump: The Art of the Deal (1987). Jonathan Mahler,
Still another explanation for the administration’s unexpected restraint when it comes to courts may be the most powerful. While admittedly preliminary, some recent work finds teasing indications of partisan and ideological disequilibrium with respect to longstanding perceptions of the courts. Charles Babington,
Consider, in this regard, the trend lines revealed in Figure 2. This figure lays out what Democratic and Republican party platforms have had to say with respect to the judiciary for every four-year cycle from 1948 to 2016. Until the 1976 platform, both Democrats and Republicans appear to have been deferential to courts in these official party statements, generally avoiding reference to the judiciary entirely. Beginning in 1976, however, we can detect a notable shift in party attitudes, especially for Republicans. GOP platforms became increasingly detailed and negative in discussing courts and judges over this period (while Democrats continued to give judicial politics a low profile). Thus, with the exception of 1984, every Republican platform from 1976 has made at least some negative reference to courts and judges. These statements have objected to specific court decisions in such areas as prayer in school, criminal justice, and, of course, abortion. In addition, beginning with the 1980 platform, the GOP also began calling for the appointment of judges whose rulings would be consistent with their policy and ideological goals. In contrast, Democratic platforms from 1976 through 1996 were mostly silent with respect to courts, reflecting the party’s resistance to having courts enter into national politics, its basic contentment with the judiciary’s role in policymaking, or, most likely, both.
Figure 2
Negative and Positive Statements about Courts in Major Party Platforms (1948-2016).
But as Figure 2 suggests, at least with respect to party platforms, this pattern of active Republican skepticism towards judicial authority and quiet Democratic complicity started to change in the twenty-first century. In our new century (significantly framed by the 2000 decision Jeffrey Toobin, Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law 2 (2010). Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 218-220 (2004) (discussing the New Deal “settlement”).
Today, while liberals fret about such issues as the future of constitutionally protected abortion, affirmative action, civil rights, and campaign finance, many conservatives and Republicans see the courts entering favorable rulings on questions of federal power ( 514 U.S. 549 (1995). 521 U.S. 507 (1997). 529 U.S. 598 (2000). 570 U.S. 2 (2013). 554 U.S. 570 (2008). 561 U.S. 742 (2010). 558 U.S. 310 (2010).
In sum, a possible explanation for the relative reticence of this administration (and its congressional and interest group allies) to engage and criticize the inherited “Obama judiciary,” is a perfect storm of political forces, including the competitiveness of national elections, the finely tuned partisan balance in the court system, and ideological uncertainty in both major parties about the judiciary’s future direction. In the case of the GOP in particular, this ambiguity has been further clouded by the new political strains introduced by President Trump. The President’s populist and nationalist flair, mercurial policy preferences, and personal governing style don’t easily comport with the mainstay leaders and ideological groups that traditionally comprised the Republican party—social culture warriors, fiscal conservatives, and libertarians. Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (2005).
Occam’s razor requires that we identify one other explanation for the (temporary) low-boil of executive-judicial relations. As noted earlier, President Trump has been especially vociferous and ebullient in speaking about his judicial nominees and then appointments. He hailed his first Supreme Court appointment, Neil Gorsuch, as “one of the most qualified people ever to be nominated for this post,” The White House, The White House, Jake Miller, The White House, Donald J. Trump (@realDonaldTrump), Twitter (Nov. 1, 2017, 3:03 PM),
Seen in this light, the federal judiciary is a positive reference point for the President. Especially since the U.S. Senate has now ushered in a post-“nuclear” age (in which all federal judicial nominees can be confirmed with a simple majority vote), the prospect of future court appointments may strike the President as especially enticing—a political task where Trump will face relatively little opposition, and can claim individual success. With both a cooperative Republican Senate and a list of pre-screened jurists on hand, Zoe Tillman, Peter Overby,
We can distill three basic components of the argument so far: First, given the national climate of partisanship, growing politicization of courts, and distinctive features of Trump’s claims to power and overall stance towards governing, we had good reasons to think that his administration would usher in a period of increased combativeness with respect to courts and judges. Second, notwithstanding this context, we do not find, in the early Trump years, an especially contentious set of statements (or legislative proposals) regarding specific court decisions, judicial independence, or the judiciary as an institution. This relative deference (even, or especially, in the face of some unfavorable rulings) stands in contrast with the President’s statements about other “opponents” (including the “deep state” and the news media).
But the third major claim in this piece is that we can perhaps best understand this otherwise puzzling phenomenon by appreciating the complex mix of the President’s personal experiences with law and courts, the tightly competitive state of national politics, unstable attitudes towards the judiciary, and shifting ideological commitments in the major political parties. We might also note that the recently lowered barriers to judicial appointments in the Senate have induced some Republicans to think of the judiciary in especially opportunistic terms. Savage,
What is the wider significance of these claims? To begin with, one must concede that over the course of any administration, and, no doubt, during the Trump years in particular, interbranch armistices are fragile. As argued, given our current context of both ideological flux and major party uncertainty regarding a judiciary that is fairly balanced with respect to partisan appointments, it seems difficult to imagine that courts will consistently chafe against the elected branches over the next few years, especially if Republicans remain in power. But it also does not require great imagination to envision a controversial court decision in the area of, say, immigration or national security, or perhaps a judgment against one of the President’s advisors (or family members), triggering a vituperative response from Mr. Trump and his allies. So far, Trump’s disruptive demeanor has been fairly restrained when it comes to judges and courts, but he could easily find a pretext for shattering this rapprochement.
It is also an open question whether the President’s unconventional governing style and ideological orientation will carry over in important ways to his judges. In particular, will the President’s new federal appointees represent a different breed of appointees? Could they, for example, be more apt to give expression to populist values, or communicate directly with the public through new media, or perhaps assume a more confrontational stance with respect to their colleagues on the bench and in the other branches of government. Shira Scheindlin,
While it is far too early to say anything meaningful about this question, we can note that several of the President’s early nominees possess a different background and character than appointments of the past. They are less demographically diverse, less experienced, and potentially more willing to speak out against perceived mistakes by the judiciary itself. Alliance for Justice, 576 U.S. ___ (2015). 847 F.3d 1151.
The final point one should note about the future of executive-judicial relations in the Trump era is the most important one: on a daily basis, the administration is laying down precedents in our brave new “post-nuclear” world. As noted, some commentators have already reported that the new administration is pursuing an especially aggressive and partisan appointments strategy, taking advantage of the distinct opportunity created by a stockpile of conservative candidates coming of age alongside the newly permissive Senate rules. These rules have already eliminated the judicial filibuster and may weaken or eliminate the “blue slip” process through which Senators can block a nominee from their own state. Savage, Mark V. Tushnet,
The latter outcome threatens to leave the judiciary understaffed and dysfunctional during periods when the Senate and president are of different parties, and “as polarized as the rest of the country” when the process runs smoothly but stocks the courts with increasingly ideological and extreme appointees. Savage,
As the legal scholar Tom Tyler has shown, people consider the judiciary a unique and authoritative forum for settling social conflicts. We accept the courts’ judgments, even when they seem to go against our own personal interests, because we have public trust in our judges and their commitment to a procedural justice that provides everyone with a genuine and meaningful voice, and the right to be treated with impartiality and respect regardless of race, class, gender, or party.