Courts Under Pressure: Judicial Independence and Rule of Law in the Trump Era

Below you will find an ongoing discussion among academics, advocates and judges, sparked by the ideas raised in the Brennan Center's symposium on attacks on judicial independence in the Trump era.

April 30, 2018
With our democracy under strain, the courts are on the front lines, constraining the executive and other government actors in cases that regularly put our judicial system in the public eye. Courts have also been put on defense. The President has suggested the courts should be blamed for terrorist attacks, targeted judges for their decisions, and pardoned a government official who refused to follow court orders. This year’s high-profile Supreme Court term may lead to further conflicts between the President and the courts. War, or an attack or other emergency, could also dramatically change the political environment and prompt efforts to curb judicial power. These threats appear in the context of broader assaults on the rule of law and the institutions designed to protect it. 
 
In November 2017, the Brennan Center for Justice brought together judges, advocates, scholars, journalists, and bar leaders to help assess the nature and extent of the threats to the courts in the current political environment, and inform strategies and tactics for promoting the rule of law. 
 
In April of 2018, NYU Law Review published the following articles and responses coming out of the discussion.
 
 
 
 
The Brennan Center's Johanna Kalb and Alicia Bannon discuss threats to the courts and the rule of law, and provide an overview of the symposium's articles and responses.
 
 
 

The Power of "So-Called Judges"

Tara Leigh Grove of William and Mary Law School argues that there are strong reasons to expect the executive branch will continue to comply with federal court orders, despite the fragility of the norm of judicial independence. 

 

Response: A Norm No More: Elected Officials' Lack of Deference to State Courts

David Lyle, of the American Constitution Society, argues that the norm of executive branch compliance with judicial orders has increasingly shown signs of erosion at the state court level. 

 

Response: The Bounded Independence of the American Courts

Keith Whittington, of Princeton University, argues that if political elites continue to see an independent judiciary as beneficial to their long-term interests, courts can likely maintain their independence in the face of attacks. 

 

Has Trump Trumped the Courts?

Michael Nelson, of the Pennsylvania State University, and James Gibson, of Washington University in St. Louis, explain the results of their national survey on how criticism of the U.S. Supreme Court impacts Americans' support for the institution.

Response: How Do People Think About the Supreme Court When They Care?

David Fontana, of George Washington University, argues that Nelson and Gibson's analysis does not measure public perceptions of the Supreme Court in times when the public cares about the Court.

 

The "Lower" Federal Courts: Judging in a Time of Trump

Judge Nancy Gertner of Harvard Law School analyzes the challenges of judging in the Trump era relative to judging in "ordinary times." 

 

Response: The Aggressive Virtues

Stephen Vladeck, of University of Texas School of Law, argues that while a "passive judiciary" with respect to executive power has become standard, and judicial skepticism the exception, such norms are not necessarily preferable or inevitable.

 

Democratic Erosion and the Courts: Comparative Perspectives

Aziz Huq, of the University of Chicago Law School, provides a comparative international analysis of the role of the judiciary in the context of democratic erosion. 

 

Response: Internal Oversight and the Tenuous Protection of Norms 

Shirin Sinnar, of Stanford Law School, argues that the efficacy of oversight institutions within the executive branch depends upon norms currently under attack.

 

Constitutional Good Faith

Andrew McCanse Wright, of Savannah Law School, argues that a rule of law constitutional scheme cannot depend primarily on checks and balances, but rather, on political actors' self-regulation via constitutional good faith.