The battle in the Senate over Judge Neil Gorsuch’s confirmation is perceived by many as institutionally damaging. A more pervasive harm, however, stems from attacks in recent presidential tweets concerning judges and the judicial process. Even Gorsuch characterized them as “demoralizing.”
Constructive critiques ought to be responsible, not weaponized to undermine the integrity of the judicial rule of law. Disagreeing with an outcome and reasoning of a judicial order is surely appropriate from litigants, the public, media, commentators and other branches of government. Such pushbacks let in fresh air for accountability.
In “The Nature of the Judicial Process,” Benjamin N. Cardozo, when he was chief judge of the New York Court of Appeals, observed that judges are not like knights-errant (or Don Quixotes), wandering the countryside looking for causes (or trouble) to satisfy personal or utopian visions of good versus evil. They decide only the cases and controversies brought to them. His predecessor on the Supreme Court, Oliver Wendell Holmes, is reputed to have replied when asked, “What is it like up there?,” that, “We are very quiet there, but it is the quiet of a storm center.”
Over the nation’s history, storms have erupted to disturb the quiet surrounding the authority of the so-called weakest of the three branches of governance. Chief Justice John Marshall planted the seeds of the “storm center” with his foundational Marbury vs. Madison principle of judicial review in 1803, including through the added self-investiture that the “law is what the Supreme Court says it is.” Two of his contemporary presidents disagreed with that blueprint for the operational authority of the Supreme Court.
His fellow Virginian, Thomas Jefferson, was the losing official in the Marbury case. A frontier neighbor, Andrew Jackson, disdained Marshall’s principle with his reaction to Marshall’s opinion in Worchester v. Georgia. That case ruled in favor of the Cherokee tribe and should have mitigated the Trail of Tears atrocities inflicted on the earliest Americans by removal from their homelands. Instead, President Jackson is said to have responded, “Marshall has made his decision. Now let him enforce it.” Jackson wrote that the decision “has fell still born, and they will find that it cannot coerce Georgia to yield to its mandate.”
Interbranch storms brewed anew during the Civil War. President Abraham Lincoln suffered a deep distrust of the Confederate sympathies of Chief Justice Roger Taney and disagreed with Taney’s infamously wrong Dred Scott case that declared slaves property, not persons. These factors contributed to Lincoln suspension of the writ of habeas corpus and his injunction to Union generals to ignore a series of habeas corpus rulings.
The frustration Lincoln faced in confronting tough decisions to save the Union can be summed up in a letter he wrote to Rep. Erastus Corning of Albany and others in 1863, defending his suspension of habeas corpus: “Nothing is better known to history than that the courts of justice are utterly incompetent to such cases.”
President Franklin D. Roosevelt was so frustrated by adverse Supreme Court rulings that he attempted to pack its membership. And whatever else may be said of President Richard Nixon, he obeyed the Supreme Court ruling to turn over the Watergate tapes, knowing they would end his presidency.
These historical clashes between the executive and judicial branches provide perspective, even as the nation holds its breath for the next 140-character burst. Unreflective flak will fail to intimidate independent judges from performing their duties. While the latest contretemps is different in nature, scale and format from its historical benchmarks, cases will still be adjudicated on evidence and true facts.
Article 3 of the Constitution (life tenure for judges) in the long run will prove more potent than sturm und drang e-fireworks.
Joseph W. Bellacosa served on the state Court of Appeals from 1987 to 2000.