How to Criticize a Judge
Where should we draw the line on Trump's criticism of the courts?
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.
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.