I have never been a supporter of President Donald Trump and probably never will be. I do believe, however, there is at least one thing he has a right to complain about. The national press and talking heads have recently seized on the president’s attacks on the courts. Some have said his tweets will create a constitutional crisis. Calm down. We are nowhere near a constitutional crisis — at least not yet. In fact, the only decision we have is on an interim order pending trial.
While we all hope laws will be rational, the First Amendment says nothing about free speech having to be intelligent or rational. It does not exclude presidents from complaining about the courts and calling them names. I’m a retired judge. I have been called lots of names. The Republic didn’t fall. I’ve even criticized other judges’ decisions. (Especially if they reversed me.)
It may or may not be politically smart for presidents to criticize the federal courts, but complaining about the courts when they rein in the legislative or executive branches, as they are frequently asked to do, has been an age-old, bipartisan political pastime. (See quotations below.) The complaints go back nearly to the founding of the Republic, and it has survived.
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President Trump, however, should know he has not been singled out for criticism. Every president who attacked the courts was in turn criticized by the press by defenders of the courts and by other politicians, often even those in their own political party. It did not matter whether the president was named Jackson, Roosevelt, Obama or Trump.
When the courts review the actions of the executive branch, or the legislative branch or the actions of the lower courts, they are not being “political.” They may be dealing with a highly politicized issue but that is not the same. It has been argued by some politicians and judges that the courts should look only to the original meaning of the Constitution as intended by the Founding Fathers. Since this “originalist” approach is advocated so strongly by “conservative jurists” it is hoped they and their supporters may have read “The Federalist Papers” — in particular Federalist 78 by Alexander Hamilton entitled “The Judges as Guardians of the Constitution,” which states in part: “The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority. ... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this all the reservations of particular rights or privileges would amount to nothing. ... The interpretation of the laws is the proper and peculiar province of the courts.”
Hamilton and co-authors of The Federalist Papers helped write the Constitution. There can be no clearer statement of the intent of the Founding Fathers on the subject of judicial review. The same rule clearly applies to the actions of the executive branch, such as executive orders, which have the force of law.
So let’s be clear. Presidents enjoy the right to cry, moan and criticize the courts as does any citizen. The press, political opponents and supporters of the presidents have the right to chime in and criticize the president and his actions or support them. The courts have the right ultimately to decide whether a law is unconstitutional and what the law, including the Constitution, means; and the United States Supreme Court has the final authority, unless and until the law or Constitution is changed or amended. That is what the Founding Fathers expected. They believed in free and open debate even by presidents.
So have at it. This is a Democratic Republic, not an echo chamber for those in power no matter what branch of government they may serve.
Mike Wetherell is a retired Idaho district court judge and a community member of the Idaho Statesman Editorial Board.
Criticizing judges has a history
Andrew Jackson: “Well, John Marshall has made his decision, now let him enforce it.” — Attributed to President Jackson by Horace Greeley in 1832 over the case of Cherokee Nation v. The State of Georgia. ( Despite the language, the Jackson administration negotiated a compromise with the state of Georgia.)
Franklin D. Roosevelt: “This is a horse-and-buggy definition of Interstate Commerce.” — Commenting to the press on the Supreme Court’s unanimous decision invalidating the National Recovery Act, May 31, 1935.
Barack Obama: “With all due deference to separation of powers, the Supreme Court last week reversed a century of law that I believe will open the floodgates to special interests, including foreign corporations, to spend without limits in our elections.” — Jan. 27, 2010, State of the Union address, commenting on Citizens United v. Federal Election Commission.
Donald Trump: “The opinion of this so-called judge, which essentially takes law enforcement away from our country is ridiculous and will be overturned”; “Just cannot believe a Judge would put our country in such Peril, if something happens blame him and court system. People pouring in. Bad.” — Tweets from Feb. 4-5, 2017.
Benjamin Franklin: “Those who would give up essential Liberty to purchase a little temporary safety deserve neither liberty nor safety.” — 1755, referring to a tax dispute in the state of Pennsylvania to finance troops. The quote is engraved on the Statue of Liberty.