“[S]o-called judge…” “Our legal system is broken…SO DANGEROUS!” For sheer absurdity it is hard to beat President Trump’s tweets following his successive losses in the travel-ban case. This is Trumpism in a nutshell: willful ignorance, fact-free fearmongering, assertion of boundless authority, and almost hallucinatory denial of his own imploding position, all wrapped into 140 cliché-ridden characters.
But the president is not just throwing a Twitter fit about the fate of his ill-conceived executive order. Contempt for courts and due process is bred in this president’s bone, going back to the federal civil-rights case brought against his father for housing discrimination in 1973. That contempt echoes through Trump’s refusal to accept the innocence of the Central Park Five—even after the actual perpetrator in the “Central Park jogger” rape case confessed his guilt and the five previously convicted young men were exonerated by the State of New York—and through his presidential campaign howls of “lock her up.”
If there were any doubts about where this leads, White House aide Stephen Miller fleshed out the president’s response to the Ninth Circuit ruling: “We have a judiciary that has taken far too much power and become, in many cases, a supreme branch of government,” Miller said. “Our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.” The president, in other words, sees his authority as above judicial review.
Trump, of course, is seeking to preemptively delegitimize any future rulings against him on the travel ban. That much is conventional self-serving politics. But it is also clear that in Trump’s mind, the fundamental principle of judicial supremacy in constitutional matters, a cornerstone of American law going back to Marbury v. Madison in 1803, does not exist. It’s equally clear that he and his White House team are blind to the catastrophes that have ensued in spheres both foreign and domestic over the last 50 years each time a president explicitly decided that, as Richard Nixon put it to David Frost, “when the president does it that means that it is not illegal.” Nixon’s secret bombing of Cambodia; the domestic spying and other sweeping abuses of federal agencies from the CIA to the IRS that brought the same president’s impeachment; the Bush administration’s torture and rendition campaigns after 9/11—each were defended as unreviewable by White House lawyers and apparatchiks, each led to large-scale human-rights abuses that were ultimately condemned by courts or Congress, and each stands as a grim blot on the American conscience.
Trump’s attack on the Ninth Circuit court even aroused the reported consternation of Supreme Court nominee Neil Gorsuch (only the latest Republican to learn that when you dine at the Trump table, you should expect a generous helping of humiliation on the side). But here’s the reality: Through the tangled circuitry of his narcissism, President Trump is just crudely amplifying tunes that have blared for decades from the right-wing vuvuzela band, including Gorsuch himself. Ever since Brown v. Board of Education, no idea has been more important to the American right than the libel of judicial overreach; no claim a more effective, resentment-stoking stand-in for racial animus, corporate greed, abusive law-and-order policies, or retreat from sexual liberation and abortion rights. And no intellectual commitment has been more important to two generations of impeccably credentialed right-wing legal ideologues, from defeated Supreme Court nominee Robert Bork on through Justices Antonin Scalia and Clarence Thomas.
Unlike his patron Trump, Judge Gorsuch seems thoughtful, amiable, and capable of seeing multiple points of view. But whatever exception Gorsuch takes to the president’s attacks on fellow jurists, the constitutional originalism he is devoted to is part of the same long post-Brown campaign to delegitimize and constrain federal courts’ expansion of civil rights and to undermine courts’ support for expansive economic, environmental, and labor regulation. Beneath that veneer of civility, Gorsuch can still write that the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams,” stoking the same contempt for liberal jurisprudence as Trump when he hammers out bad judges on his insecure smartphone.
The fight over President Trump’s travel ban will continue on its way through the courts; he will probably continue to lose and continue to fulminate. If nothing else, this particular presidential Twitter storm may actually illuminate rather than obscure the issues, showing that this administration’s authoritarian impulses reach far beyond one executive order. Between the swelling demonstrations in support of immigrants, and the widespread alarm at Trump’s court-bashing, it may even be possible that we have arrived at a moment when the country is ready for a real debate—the first in decades—about the relationship between our courts and the American social contract.
The real question underlying the president’s assault on the judiciary is simple: What does it mean to think like an American? The fight is not about just one executive order, or one Supreme Court nominee. It is about reawakening the positive and expansive vision of American rights and responsibilities that bubbled up, all too briefly, during the presidential campaign, and that we are now struggling every day to recollect in the face of demoralizing, demeaning, daily attack.
