Recently, in International Resources v. Trump, the Supreme Court, in a 6-3 majority opinion written by Chief Justice John Roberts, declared that President Trump had exceeded his statutory authority by using an emergency statute, the “International Economic Emergency Powers Act,” to impose sweeping tariffs without congressional approval.
In the weeks since the decision, Trump has responded with an ongoing, vicious stream of personal attacks against the justices who ruled against him, in a manner that defies historical practice, norms of discourse and expectations of decorum. Trump’s assault on the court presents grave threats to judicial independence, the separation of powers, the rule of law and safety of the justices.
The court’s ruling should not have been a surprise. Legal scholars had identified the principal vice of Trump’s tariffs, and Chief Justice Roberts nailed it in his opinion. The statute granted to the president authority to “regulate” imports, but the word regulate does not include the power to tax. A tariff is “simply a tax on imported goods,” and the taxing power is granted solely and exclusively to Congress. In a civic lesson, the chief justice reminded the nation that Congress possesses the unique, constitutional power to access “the pockets of the people.”
President Trump’s immediate reaction to the decision was filled with personal invectives. Justices in the majority were “unpatriotic and disloyal to our Constitution,” a “disgrace to our nation,” and “slimeballs,” “fools and lapdogs” in service of foreign interests. “He reserved special venom for his two nominees, Justices Amy Coney Barrett and Neil Gorsuch, describing them as an “embarrassment to their families.”
Trump’s unrelenting tantrums defy any definition of presidential decorum. By comparison, his stinging defeat could not match the pain that Vice President Al Gore felt when the court’s decision in Bush v. Gore (2000) to stop the vote recount in Florida may well have cost him the election. Gore did not resort to personal attacks on the 5-4 majority but publicly declared that it was necessary to respect the court’s ruling, even though he disagreed with it.
Across a vista of 200 years, American presidents have seen fit, and rightly so, to criticize Supreme Court opinions when they differ with the rulings, legal reasoning, constitutional interpretation and statutory construction employed by the court. The high bench, after all, has delivered rulings that seem utterly indefensible. As Justice Robert H. Jackson famously wrote in 1953: “We are not final because we are infallible, but we are infallible only because we are final.”
Presidential criticisms of the court’s opinions have come in various shapes and sizes. Some, for example, reflect “lawyerly” arguments, nuanced reasoning and doctrinal differences. Thomas Jefferson invoked jurisdictional grounds for criticizing Chief Justice John Marshall’s opinion in Marbury v. Madison (1803). In his first inaugural address, Abraham Lincoln took aim at the court’s infamous decision in Dred Scott, while Chief Justice Roger, sitting before him, “trembled with rage.” Lincoln said, “The candid citizen must confess, that if the policy of the government, upon vital questions, affecting he whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, the people will have ceased to be their own rulers, having practically resigned their government into the hands of that eminent tribunal.” Barack Obama offered a candid and correct criticism of the court for its ruling in 2010 in Citizens United. “It will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”
Some criticisms are apocryphal. Andrew Jackson reportedly declared, in reaction to the court’s ruling in Worcester v. Georgia, “Well, John Marshall has made his decision, now let him enforce it!” Others contain a measure of humor and creativity. Franklin D. Roosevelt, frustrated by the court’s anti-New Deal rulings, campaigned against it in 1936 for its “horse and buggy jurisprudence.” A deeply disappointed Theodore Roosevelt said of Justice Oliver Wendell Holmes, “I could carve out of a banana a judge with more backbone than Holmes.”
As with most things in life, there are right ways and wrong ways to proceed. Historically, presidents have criticized judicial opinions, usually in tempered terms, cognizant of the importance of judicial independence. Trump’s harsh, bullying, tactics effectively place a target on the backs of the justices and will require increased security for them and their families. Those tactics betray the rule of law.
David Adler is president of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality and civic education. This column is made possible with the support of the South Dakota Humanities Council, South Dakota NewsMedia Association and this newspaper.
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