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Monday, February 06, 2017

Criticizing v. Threatening--wither the line?

Where is the line between criticizing the judiciary and engaging in threats that potentially undermine the independence of the judiciary? That is the question following Donald Trump's tweets over the challenge to the travel order--where he first referred to District Judge James Robart as a "so-called judge," then said Robart and the judicial system had put the country in peril and would be to blame if there were a terrorist attack while enforcement of the order is enjoined. Will Baude, Eric Posner, and profs on various listservs have decried this as a genuine threat--undermining judicial independence and possibly inciting mob violence against judges should anything happen.*

[*] Threats aside, the comments also rest on a false premise--that there has been a dramatic increase in travel to the United States since the TRO was entered or that the TRO prohibits all vetting and discretion in issuing visas or accepting refugees.

I agree that this is a wrong and intemperate way to criticize a court, a judge, and a judicial ruling and a wiser President would tone it down, focusing on the correctness of the decision rather than whether the judge was acting as a judge and thus had the power to render that decision (Will's point). But I am not convinced this reflects a threat or a shot across the bow of an independent judiciary. Nor am I convinced by how bound up the comments are with whether Trump might disobey or disregard a judicial order. Trump could disobey the order without verbally attacking the judge. These tweets perhaps prime the public to support and accept his disobedience, because they have been primed to understand the decision as non-judicial and thus not entitled to obedience. But they are not a necessary condition for a presidential showdown with the courts, should Trump choose to have one.

On the other hand, I worry that in seeing the President's tweets as so much noise that should not be taken seriously, I am falling into the very trap that a would-be authoritarian President needs--missing efforts to undermine the judiciary before it is too late.

Posted by Howard Wasserman on February 6, 2017 at 01:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I agree. To say a judge is a "so-called judge," I think, is just to say he's a bad judge who's not deserving of the title, and I don't see how saying so threatens judicial independence. And indeed, it does seem, to me at least, rather injudicious of Judge Robart to enter a nationwide injunction of a president's executive order without giving a single reason for why he thinks the plaintiffs are likely to succeed on the merits (either in his written or oral ruling, and no his questions during oral argument don't count as reason-giving), or even saying which of the plaintiffs' several claims (any, all, some?) he thinks are likely to succeed. He has given appellate courts absolutely nothing to review. I don't know how much of that Trump knows or understands but I have to think he's at least been told that this is an unusually unreasoned order, and would like to think his reaction might be a little more temperate if that weren't the case.

Posted by: Asher Steinberg | Feb 6, 2017 1:35:32 PM

At the very least, Trump's actions require a response from the judiciary (such as finding him in contempt). He, after all, is the named defendant in the case and has shown blatant disrespect for the judge and the court, in general. Perhaps an Order to Show Cause (with a command that he personally appear) would do a lot to teach him about the co-equal branches ...

Posted by: anon | Feb 6, 2017 1:13:22 PM

ETA: Also, it isn't just Trump, but the messaging to others.

We see this, e.g., on how people have been taught not to trust the media at all, even when it provides actual facts. When the guy in the White House promotes the idea that judgments are only "so-called," I am concerned.

Posted by: Joe | Feb 6, 2017 11:07:50 AM

The word "authoritarian" means "favoring or enforcing strict obedience to authority, especially that of the government, at the expense of personal freedom." If putting people in prison for what would now be deemed rather mild anti-war statements, up to the Socialist candidate for President, is not that, not sure what the word means.

And, there can be degrees. The "inane shrillness" issue, glasshouses, can also be a problem for critics of critics.

The people cited are not some sort of weak-willed sorts and Posner supports an executive that some might label as too authoritarian. Baude ends with a word of caution: "I hope I am reading too much into this. But I am positive that this is not the last time I will be writing about judicial decisions and judicial authority." I think by now being on guard with Trump is good policy.

One-offs alone tell us little without context. By now, yes, I am concerned that 'so-called' sends a message that he doesn't respect the judge's authority. Of course, he also has a tendency to just spout off. But, we saw this with his dealings with women. Such dismissive language correlates with not respecting their basic authority (in the case of women, their rights of bodily integrity). It's a red flag. It alone is but that, but again, by now, fool me once ...

Posted by: Joe | Feb 6, 2017 9:37:09 AM

Also, where's the angsting thread?

Posted by: YesterdayIKilledAMammoth | Feb 6, 2017 1:28:26 AM

John Adams signed the Alien and Sedition Acts in 1798. Parts of the act served to allow the infinitely lauded Wilson to assume powers of deportation, and gave a precedent for Roosevelt to imprison Japanese, German, and Italian aliens during war.

Were any of these men "would-be authoritarian" Presidents? Is it possible for educated people to knock this insane shrillness of the discussion?

Posted by: YesterdayIKilledAMammoth | Feb 6, 2017 1:27:22 AM

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