How to Criticize a Judge

Where should we draw the line on Trump's criticism of the courts?

March 6, 2017
Cross-posted from U.S. News & World Report
 
On Monday President Donald Trump issued a new executive order banning travel from six predominantly Muslim countries, which – like the last order – is almost certain to be challenged in court. If that happens, and if he gets another ruling he doesn't like, we hope the president will exercise more restraint than he did last time and refrain from any more attacks on "so-called" judges.
 
That doesn't mean he has to stay silent. Let's be clear: Judicial rulings are criticized all the time, and by all manner of people. Indeed, we at the Brennan Center have done it ourselves – and past presidents have regularly complained about the courts. This is as it should be. Judges aren't immune from pointed criticism. Like it or not, they are part of our political system. Their decisions can impact everything from how we fight terrorism to whom has the right to marry. Federal judges in particular have tremendous power – which they get to keep for life. That remarkable level of authority does not come with the right to never have one's sensibilities offended by disparaging remarks.
 
But while judges may be political actors, they are not politicians. Our system demands a level of impartiality from judges that would be inappropriate to ask of the president or a member of Congress. And judges' authority depends almost entirely on their public legitimacy – our shared understanding that even when you are on the losing side of a court case, you need to respect the outcome.

But where, exactly, should we draw the line on criticism of the courts? Historical practice and some reflection about the role of courts in our constitutional system suggest several considerations.

First, while it is quite common for officials to complain about an adverse ruling, in the modern era it has never been considered appropriate to defy the ruling – or otherwise seek to undermine the court's authority. President George W. Bush's response to a Supreme Court decision giving Guantanamo detainees the right to challenge their detentions is a good example. "We'll abide by the court's decision," Bush said. "[T]hat doesn't mean I have to agree with it." Lashing out at a "so-called judge," on the other hand, seems to question the court's very authority.

Second, there is a difference between criticizing a ruling and personally attacking the judge. While modern presidents have made their share of colorful complaints behind closed doors (Teddy Roosevelt once said of Justice Oliver Wendell Holmes, "I could carve out of a banana a judge with more backbone than that"), they have almost universally avoided public personal attacks. Even President Obama's controversial denunciation of Citizens United during his 2010 State of the Union hewed to this line – it was the setting that was unusual, not what he said.

Of course, judges do sometimes behave illegally or unethically, in which case personal criticism is fair, provided it has some actual basis. Other judges have an off-bench habit of wading into political or other public debates, like Justice Ruth Bader Ginsburg did when she criticized then-candidate Trump. Under these circumstances, Ginsburg opened herself up to return fire (although we don't defend the vitriol of the response she received). Regardless, it is one thing to respond to a judge's political criticism, and quite another to repeatedly question the personal integrity of judges based solely on disagreement with their rulings.

There is also a difference between expressing disagreement after the fact and trying to pressure a judge to influence future decisions. President Obama raised some eyebrows, for example, when he weighed in on the Affordable Care Act litigation while it was still before the Supreme Court. More serious bullying – such as threatening impeachment for unpopular rulings – is clearly over the line.

Third, it also matters who the judge is. U.S. Supreme Court justices sit at the top of the federal judiciary, set binding precedents for the nation and are some of the most powerful people in the country. In contrast, trial judges are closer to private citizens and lack the power, prominence and security details of members of the high court. They are likely to experience an errant tweet as far more threatening than would a member of the Supreme Court.

Finally, not all critics are the same. The president has a unique platform and with that comes unique responsibility. Personal attacks by the president can pose real safety risks, while even careless statements that suggest a court's ruling should not be respected can do great harm to our system of government.

Judged by these standards, President Trump's attacks on the courts were dangerous and wrong, and we hope he won't repeat them. But it's not enough to simply condemn his statements. We need to be clear on what exactly he did wrong and vigilant in holding others to the same standard. 

(Photo: Flickr.com/GageSkidmore)