By Scott A. Boykin
Over the last week, one of the legacy media’s chief talking points is that the Trump administration is precipitating a “constitutional crisis” by, among other things, criticizing federal judges. It’s ok to criticize judges. Just ask Justice Elena Kagan, who says we should criticize the Supreme Court if we don’t like their decisions. Justices Kagan, Sotomayor, and Jackson have not hesitated to harshly criticize the Court’s conservative majority in speeches and interviews. There is a long history of elected officials criticizing judges, and that shouldn’t surprise us, because judges and elected officials are all part of the unending struggle for political power to bend the state apparatus to the will of the party that won the last round.
Democrats have been lambasting the Supreme Court for years without concern about the separation of powers or fear of fomenting a constitutional crisis. Joe Biden urged sweeping constitutional changes to mandate term limits for Supreme Court Justices, whose decisions he characterized as “extreme opinions,” and a “code of ethics” to give their opponents opportunities to force them off decisions or impeach them. Democrats, now parading as defenders of the separation of powers, have demanded they obtain a such a code to give them leverage over Justices who stray from their preferred interpretations of law. Senate Democratic Leader Chuck Schumer threatened Justices by name in front of the Supreme Court building during oral arguments. When Justices don’t follow the Democratic Party line, Democrats denounce them as “extreme” and “far-right,” forgetting the tender place in their hearts for the separation of powers.
Presidents criticizing the courts and even questioning their authority is nothing new. In fact, it has happened repeatedly throughout American history. In Marbury v. Madison (1803), the case that established the principle of judicial review, Secretary of State James Madison refused to present his case to the Court, being convinced that the Supreme Court lacked the authority to make him deliver a commission to Petitioner William Marbury to serve as a D.C. Justice of the Peace. Chief Justice John Marshall, Madison’s predecessor as Secretary of State and his political opponent, managed to strengthen the power of the judiciary with the principle of judicial review and avoid ordering Madison to deliver the commission, which Madison and President Thomas Jefferson would certainly have refused to do. In Georgia v. Worcester (1832), President Andrew Jackson refused to enforce a judgment of the Marshall Court that the State of Georgia could not imprison Vermont missionary Samuel Worcester for going onto Cherokee territory, where he had preached and encouraged the Cherokee to seek legal relief from efforts to expel them from Georgia. “John Marshall has made his decision,” Jackson is reputed to have said. “Now let him enforce it.” Abraham Lincoln, in response to Dred Scott v. Sandford (1857), which held in part that the federal government could not regulate slavery in the territories, attacked judicial review as antithetical to republican government and signed into law a statute that banned slavery in the territories, ignoring the Court’s Dred Scott decision. Lincoln also disregarded the Court’s decision in Ex parte Merryman (1861) that only Congress could suspend the writ of habeas corpus, attacking the Court in his 1861 address to a Special Session of Congress, where Merryman’s and Dred Scott’s author Chief Justice Taney was present: “would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?” Theodore Roosevelt invoked Lincoln’s rejection of judicial supremacy in attacking Supreme Court decisions that rejected Progressive encroachments on limited government and freedom of contract. In perhaps the most well-known of these incidents, Franklin Roosevelt presented to the public and Congress a plan to pack the Supreme Court with new Justices who would support his New Deal policies, suggesting that the current Court suffered from a “hardening of the judicial arteries” and was out of touch with the country’s needs. This plan was abandoned after Justice Owen Roberts changed his vote in an important case that opened the way for much of Roosevelt’s New Deal legislation.
Alexander Hamilton famously suggested that the judiciary would be the “least dangerous” branch of government under the Constitution, meaning that courts would not have the policy making role reserved for the elected branches. This is one prediction about the Constitution that has not aged well. The courts have acquired a policy making role, and it is for this reason that we should expect to see conflict between the elected branches and the courts during periods of high political tension. The examples from American political history make clear that this has happened repeatedly, so it is reasonable to hypothesize that we will see it in times of severe political conflict. Furthermore, research has made clear that the ideology and policy preferences of judges exert a powerful influence over their decisions, so it is not an idle claim that judges may have done so in a particular case. The left wants you to believe that President Trump’s criticism of the courts means that a unique and perilous “constitutional crisis” is looming. They are hoping that you have forgotten about their recent attacks on the Supreme Court and historical examples of presidents criticizing the courts and questioning their authority in periods of high political tension.
It is a myth that judges are apolitical arbiters of sacrosanct legal principles. Judges are policymakers who seek to get results they want in cases and to establish legal principles and policies they prefer. They are fully part of the struggle for power that is the essence of politics. Their decisions are fair game for criticism, and they always have been.
Dr. Scott A. Boykin teaches business law, conducts research in political philosophy, American constitutional law, and administrative law, and has taught an array of law and political science courses. The views expressed are his alone and not those of any institution or organization. His substack is free.
