Jurisprudence

Donald Trump Wants the Courts to Answer Only to Him

We’ve gotten so used to his comments undermining judicial independence that no one is speaking up against them anymore.

Sotomayor smiles next to Ginsburg, with an American flag in the background.
Justices Ruth Bader Ginsburg and Sonia Sotomayor at the U.S. Capitol on March 18, 2015.
Melina Mara/The Washington Post via Getty Images

In a pair of tweets from India on Monday, President Donald Trump called for the recusal of two Supreme Court justices, Sonia Sotomayor and Ruth Bader Ginsburg, in “all Trump, or Trump related, matters!” It was, in some sense, another piece of Donald Trump’s lawless gibberish, spotlighting his trademark failure to understand the differences between judges and politicians, dissents and public speeches, bias and judicial opinion, law and, erm, life. But it also fell neatly into a long-standing pattern that is worth noting even if it is the result of his own incomprehension: The president is single-mindedly intent upon insulting judges and justices, demanding their silence, and destabilizing the judiciary itself.

His tweets tagged a TV segment about a Sotomayor dissent from last Friday, in which the justice accused the court majority of allowing the Justice Department to leapfrog over the lower courts to give premature wins to this administration. The decision resolved a dispute over a lower court ruling that had temporarily blocked Trump’s “public charge” rule from going into effect, in Trump’s favor. Sotomayor’s dissent never mentioned the president. “ ‘Sotomayor accuses GOP appointed Justices of being biased in favor of Trump,’ ” he tweeted. “Trying to ‘shame’ some into voting her way? She never criticized Justice Ginsberg when she called me a ‘faker’. Both should recuse themselves on all Trump, or Trump related matters! While ‘elections have consequences’, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!”

In a lengthier rant in India later the same day, Trump said that Ginsburg should recuse “because she went wild during the campaign when I was running,” he said. “I don’t know who she was for—perhaps she was for Hillary Clinton, if you can believe it—but she said some things that were obviously very inappropriate.” He added that “Justice Sotomayor said what she said yesterday. You know very well what she said yesterday. It was a big story. And I just don’t know how they can not recuse themselves for anything having to do with Trump or Trump-related.”

Evidently, with Trump’s financial records case about to be heard at the high court, it’s a good time to start accusing individual justices of bias. Besides, who really even notices anymore? It’s hard to devote the time and brain space to being appalled; after all, the president was only just wrapping up his attacks on Judge Amy Berman Jackson, who oversaw the Roger Stone sentencing last week. He’d falsely accused her of being “the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure?” He also went after the forewoman of the jury in the same case, in a move that should chill anyone from participating in jury service. Roger Stone similarly expended energy trying to have Jackson removed from his criminal case based on her oral statement at his sentencing that acknowledged that the jurors on his case had “served with integrity.”

Jackson, unwilling to tolerate the comedy stylings of men who hate judges for fun and profit, speedily dismissed Stone’s motion by noting that it was garbage, and then stood up for the juror. “At bottom, given the absence of any factual or legal support for the motion for disqualification, the pleading appears to be nothing more than an attempt to use the Court’s docket to disseminate a statement for public consumption that has the words ‘judge’ and ‘biased’ in it,” Jackson wrote Sunday. She added, perhaps presciently, that “if parties could move to disqualify every judge who furrows his brow at one side or the other before ruling, the entire court system would come to a standstill.” Of course that is precisely what this president seeks to do, both on the disqualifying end and also on the standstill end.

We can certainly add Trump’s attacks on the two justices, the judge, and the forewoman, to the pile of attacks on Nancy Pelosi, Marie Yovanovitch, Fiona Hill, Pam Karlan, and all the other women who dare to speak against him. But almost buried in Saturday’s bombshell report from Jonathan Swan at Axios about new Trump purges spearheaded by outside conservative activists (including Clarence Thomas’ wife, Ginni Thomas, and Republican Senate staffer Barbara Ledeen) is a creepy detail about former D.C. U.S. Attorney Jessie Liu, who was removed from that position and then had her nomination for a top Treasury role withdrawn last month. Among Liu’s acts of disloyalty, apparently, is her failure to indict former FBI Deputy Director Andrew McCabe and the fact that she held a leadership position in a women’s organization that is pro-choice. The politicization of the DOJ, as reported this weekend by the New York Times, has a lingering odor of vengeance and retribution. Liu was by all accounts a “good soldier.” But she allegedly let the president down on his series of much-wanted prosecutions of Andrew McCabe, “violent inauguration protesters who plotted to disrupt the inauguration,” and, apparently, Brett Kavanaugh accusers.

No doubt Attorney General Bill Barr, who complained last week that the president’s tweets were making it impossible to do his job, has worked through his qualms about direct attacks on sitting Supreme Court jurists and growing paranoia and despair at the DOJ. No doubt Chief Justice John Roberts, who last year took on Trump’s claim that there are “Bush judges and Obama judges,” has given up trying to tame the president as well. After all, members of his own court—specifically, Clarence Thomas—say the same things, in print. So does Thomas’ wife, Ginni, who is paid to staff up the Trump administration with friends and cronies, even as her husband sits on cases that involve the president and the agencies she seeks to reshape. But no justice who supports Donald Trump, his policies, and his Justice Department would ever be asked to recuse based on a perception of a conflict of interest. That would be asinine.

There should probably be a 21st century corollary to the oft-repeated aphorism that “all tyranny needs to gain a foothold is for people of good conscience to remain silent.” It should go something like this: “All tyranny needs to cement that foothold is for people of good conscience to believe that speaking up once and believing you’re done now is sufficient.” The Justice Department, the independent judiciary, the intelligence services, and the State Department are under daily assault. The capitulation of those who spoke up and have gone silent speaks volumes, not only to the people looking over their shoulders instead of doing their jobs, but to the person who prides himself on quashing all dissent.