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Analysis

How to Criticize a Judge

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

Edit­or’s Note, 7/23/18: On Sunday and again on Monday, in some of his most direct attacks yet on the judi­cial branch, Pres­id­ent Trump criti­cized the federal judges who approved a warrant to surveil Carter Page, a former Trump campaign aide. As a result, we’re resur­fa­cing this Bren­nan Center column from March 2017, origin­ally published by U.S. News & World Report, on when criti­cism of judges crosses the line, and why Trump’s attacks are so troub­ling. 
 
 
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.