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The increasingly fragile state of America’s weakest branch

On Jan. 27, President Trump issued Executive Order 13769. You may, however, recognize the order more readily by the name given to it by many of its opponents, and even some of its proponents: the “Muslim Ban.”

The order suspended entry of nationals from several Muslim-majority countries, and indefinitely suspended entry from Syrian refugees. The order had legally dubious foundations and, in retrospect, it was clear that not enough legal analysis, or internal vetting, had been applied to the edict before it was issued. For example, one glaring problem was that the order didn’t make it clear whether green card holders were included in the ban.  Trump has since issued a more narrow order, which has been put on hold by a federal judge.

Lawsuits quickly followed the first order and federal judges in New York, Virginia and Massachusetts ordered a temporary pause on the deportation of people who had arrived with valid visas. However, what reportedly happened next in some airports became the most troubling development for me and many other lawyers following the events as they unfolded that weekend. ACLU attorneys and others reported that federal Customs and Border Protection agents were willfully defying the federal courts’ orders, including by detaining refugees, denying them access to attorneys, and coercing them into getting on planes going back to their countries of origin.

Let that sink in. We have officially reached a point in U.S. history where there are legitimate concerns that the president will not adhere to a federal court’s decision.

Unfortunately, however, efforts to undermine and hyper-politicize the judiciary didn’t start with Trump. One critical period in the politicization of our highest court occurred when key pieces of President Franklin Roosevelt’s New Deal legislation were, to FDR’s great annoyance, being struck down by the Supreme Court. Not happy that major components of his plan to lift the country out of the Great Depression were being overturned by, in his mind, politically and ideologically motivated justices, FDR proposed the now infamous “court packing plan.” (Of course, he didn’t call it that.) The maneuver would have allowed him to appoint up to six new liberal justices. Thankfully, FDR’s plan failed, but even so, it cast an ugly fog over the court. Americans now realized the institutional integrity and independence of the court is fragile and susceptible to the whims of an overreaching executive.

The judiciary’s standing with the public was further eroded by the events that transpired under President Lyndon Johnson’s watch. In June 1968, which was an election year (sound familiar?), Chief Justice Earl Warren decided to retire from the Supreme Court. President Johnson nominated his friend, Abe Fortas, to move from Associate Justice to Chief Justice to fill Warren’s spot. Then came another ugly example of the injection of politics into the Supreme Court, in some ways reminiscent of the way Merrick Garland was treated after being appointed to fill Justice Antonin Scalia’s spot. Republicans and Southern Democrats blocked the appointment. While some today argue that the opposition was grounded in timing – that the president shouldn’t get to nominate a Supreme Court Justice in an election year – many historians now believe that the motivations were more sinister: many of the objections stemmed principally from Fortas’ political beliefs and his religion. (Fortas was Jewish and a proponent of liberal policies.) The Republicans and Southern Democrats successfully stalled the nomination until Nixon was elected, and conservative Warren Burger was ultimately confirmed.

Then there are the more seemingly innocuous ways in which we, as Americans, politicize the court in our everyday rhetoric. Take, for example, the Democrats’ treatment of Justice Ruth Bader Ginsburg. The left, on the whole, doesn’t talk about Ginsburg’s legal aptitude or her ability to distill complex constitutional issues into succinct, digestible expositions; rather, the Democrats have turned her into a cult hero, based almost entirely on her perceived defense and advocacy of liberal ideologies. Justice Ginsburg is viewed less as a capable jurist and more as a liberal, feminist warrior. Similar treatment was applied by the right to Justice Scalia. Such framing makes it very easy for opponents to criticize and delegitimize a justice’s rulings.

Nevertheless, what we’ve seen from Trump so far has been qualitatively different in nature and degree from any of these events. Never in history has a president been so openly hostile to checks on his power, including the judiciary. He’s called the federal judge who ruled against him in one of the Muslim Ban cases a “so-called judge.” He referred to the 9th Circuit as “disgraceful” and described the court as “so political.”

After being sued on allegations of Trump University fraud, he said that U.S. District Judge Gonzalo Curiel, an American citizen, would be biased against him because of his Mexican heritage. As an attorney, if I had made such a public statement, I’d be subject to punishment from my state bar for professional misconduct.

Lawyers often talk about judicial decisions we don’t like or agree with as putting us on a “slippery slope.” Trump’s rhetoric and hostility towards the judiciary has created the slipperiest slope the court has ever seen. If the politicization and hostility to the court intensifies, what checks, if any, will remain on his power?

As lawyers, we have an obvious self-interest in fighting for the legitimacy and institutional strength of the judiciary. But our interests as Americans living in a free society are even greater. As Andrew Jackson once famously wrote, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.”

As lawyers and American citizens, we must fight to maintain an independent and virtuous judiciary, as we did, for example, when FDR attempted to pack the court. If we don’t, America’s weakest branch may finally break.

Patrick Berry

Patrick Berry

© 2017 Under Analysis, LLC. Patrick Berry practices primarily in the area of business law at Boardman & Clark. Contact Under Analysis by e-mail at comments@levisongroup.com.

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