One of the questions immediately raised by Donald Trump’s attacks on federal district judge James Robart and the Ninth Circuit Court of Appeals — who together have delivered a strong legal rebuke to his executive order pausing travel from seven countries — is whether there’s any precedent for this sort of Constitution-threatening contempt for the supposedly independent judiciary. The short answer with respect to Trump himself is yes. His assault on the legitimacy of the “Mexican” judge supervising a suit against Trump University was one of the many scandals of the mogul’s presidential campaign.
But without question, Trump was and is tapping into a tradition of right-wing populist contempt for the judiciary that is nearly as old as the republic — and as disreputable as the segregationists that were the most conspicuous recent judge bashers.
Early advocates of both states’ rights and popular government instinctively mistrusted and often criticized a federal judiciary dominated by Federalist appointees of George Washington and John Adams. The emerging constitutional principle of judicial review was famously worked out through an extended battle between President Thomas Jefferson and Chief Justice John Marshall.
Populist defiance of the courts spiked again during the presidency of Trump’s self-styled model, Andrew Jackson, who struggled with Marshall on many issues related to states’ rights — most notably, state resistance to the Bank of the United States and state resistance to very limited efforts to protect Native Americans. Jackson was a staunch ally of the states on both of these issues. But as Jeffey Rosen points out, both he and before him Jefferson stopped short of total defiance of their black-robed adversaries. Indeed, when push came to shove and South Carolina asserted the right to nullify federal laws, Old Hickory sided with the federal government and its courts despite his hatred of what we might today call “big government.”
The Jacksonian tradition, however, fed a persistent mistrust of unelected judges, often thought (with good reason) to represent propertied elites determined to use the judiciary to protect their economic privileges. Such mistrust led a majority of states to embrace popular election of judges for fixed terms at the state level (a habit that endures today in much of the country). While federal judges continued up to and beyond the Civil War to represent a potential if not actual threat to conservative states-rights principles connected with slavery, the left-wing populists of the late 19th century also rightly feared judges would halt enactment of their proposals to implement government protections against the power of the privileged. Left-of-center hostility to federal judges peaked during what is known as the Lochner era of Supreme Court jurisprudence, when courts routinely struck down progressive social legislation as violating the due process rights of economic aristocrats.
A real constitutional crisis ended in 1937 as FDR’s threats to “pack” the Supreme Court by expanding its membership were quietly shelved and SCOTUS stopped systematic obstruction of New Deal legislation. Thereafter “populist” anger at federal judges largely shifted to those on the right and stayed there.
The “populist” judge-bashing with which Donald Trump would be most personally familiar — not being, by general assent, much of a reader of history or of anything else — would be the long, intense assault on the federal judiciary’s promulgation and enforcement of desegregation and related rulings from the mid-1950s into the 1970s. It’s there that Trump’s lexicon of abuse for judges finds its most resonant and not-so-distant echoes.
Throughout the civil-rights era, virtually no white southern political speech was complete without an assault on the “Earl Warren Court” and its effort to decimate the states’ rights doctrines so intimately associated with Jim Crow. (Indeed, a direct link between that era and ours is the right-wing John Birch Society, enthusiastic Trump supporters who in the 1950s launched and continued an “Impeach Earl Warren” campaign.) The idea that courts had the power to insist on desegregation was inseparable from the right-wing southern “populism” of the era. Historian Mark Grimsley writes:
In 1956 Virginia senator Harry Byrd and Georgia senator Richard Russell issued a “Declaration of Constitutional Principles” condemning the “unwarranted” Brown decision and asserting that it climaxed “a trend in the federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.” With just three exceptions, every senator and representative from the former Confederate states signed the declaration, commonly called the “Southern Manifesto.”
Exotic constitutional theories like “interposition” (the alleged power of the states to exercise their sovereignty to dispute federal judicial rulings) and the old South Carolina standby of “nullification” (too much, obviously, even for Andrew Jackson) were very much in the air in southern political circles. And in a perverse sort of interdependence, southern states often ceded control over whole areas of government — especially prisons and hospitals — to federal judges so that they could be blamed for controversial and expensive policies treating African-Americans as human beings.
Nobody was more masterful at the game of judge-bashing than the last great right-wing populist of the civil-rights era, George C. Wallace, who from the beginning of his national political career rivaled Trump in attacking judges as usurping the power of the people and the pols they elected. From his Washington Post obituary:
In 1964, Wallace campaigned as a Democratic candidate for president and attempted to explain himself outside the south. He said he opposed the growing powers of the federal government, especially the courts and the bureaucracy, which he held up to ridicule. He pointed out that federal judges and bureaucrats had been elected by no one and were increasingly usurping powers of the individuals and states. He portrayed them as underworked self-important “pointy-headed” intellectuals who had their heads in the clouds and their lunches in their trademark attache cases.
During his 1968 presidential run, Wallace’s American Independent Party called for a constitutional amendment to require periodic popular confirmation of federal judges, including Supreme Court justices. By his next and most dangerously successful presidential bid, in 1972, Wallace spent a good part of his time attacking federal judges for insisting upon “this asinine busing of little school children.”
At least Wallace, a former judge himself, knew how to articulate a legally coherent argument for reducing the power of the federal judiciary. Jackson was a licensed attorney as well, and he knew where populist rhetoric ended and the rule of law had to begin. Donald Trump appears to have adopted the invective associated with right-wing populist assaults on federal judges without the training necessary to know when to draw back. And if the incredulity he expressed at Neil Gorsuch’s reported horror at his judge-bashing is any indication, Trump is not much going to tolerate anyone who tells him otherwise.