Once again, President Trump has picked a fight with the Supreme Court.
The president’s latest battle with the court began with a pair of tweets urging Justices Ruth Bader Ginsburg and Sonia Sotomayor to recuse themselves from all cases involving “Trump, or Trump related, matters.” The president followed up in a news conference, claiming that the reasons for having Ginsburg and Sotomayor not participate in cases involving the president are “very obvious.”
Trump seems to have been set off by a segment on Fox News. In it, Sotomayor is alleged to have accused Republican members of the Supreme Court of having a pro-Trump bias. The segment also referred to the fact that Ginsburg had called the president a “faker” during his 2016 presidential campaign.
Our book, “The President and the Supreme Court: Going Public on Judicial Decisions from Washington to Trump,” examines the history of presidential interactions with the Supreme Court. Based on this research, there are four big takeaways from the president’s latest clash with the court.
1. Trump is different from previous presidents in form and substance
Throughout U.S. history, presidents have frequently butted heads with the Supreme Court. For example, Thomas Jefferson disagreed with Chief Justice John Marshall on the court’s power of judicial review. But Jefferson never openly criticized the court or its decisions while president. Instead, early presidents like Jefferson preferred to complain about the court in private correspondences with a small number of friends and government officials.
In the 1930s, President Franklin D. Roosevelt changed everything. After decisions struck down laws passed as part of his New Deal agenda, Roosevelt chose to openly criticize the court. For example, in a 1937 “fireside chat,” Roosevelt said, “We have … reached the point as a nation where we must take action to save the Constitution from the court and the court from itself.”
From Roosevelt to Barack Obama, presidents followed a similar pattern in their public criticisms of the court and its decisions. Typically, a presidential condemnation acknowledged the court’s role in the separation of powers system, explained the disagreement and proposed a remedy.
For example, in Texas v. Johnson (1989), the court held that burning an American flag is protected by the First Amendment. In response, President George H.W. Bush stated:
2. Trump’s critiques of the courts differ from other modern presidents in three fundamental ways
First, his criticisms tend to be very brief and frequently lack any sort of legal or constitutional nuance. That many of his battles with the court start with a tweet — a form of communication based on brevity — no doubt accounts for some of the lack of substance.
Second, Trump often targets individual judges or courts, rather than their decisions. For example, he engaged in a high-profile spat with Chief Justice John G. Roberts Jr. after Trump’s comment that U.S. District Judge Jon S. Tigar was “an Obama judge” pushed Roberts to defend the independence of the judiciary.
Third, President Trump frequently personalizes his disputes with the courts. Rather than focusing on policies that put him in conflict with the judicial branch, Trump often complains that courts are treating him unfairly. This personalization predates his presidency. For instance, during the 2016 presidential election campaign, the now-defunct Trump University was defending itself against allegations of fraud. Trump claimed the judge who was hearing the case would be unfair to him because the judge had Mexican heritage — and Trump was planning to build a wall between the United States and Mexico.
Trump’s abrasive personality might help him win reelection — if voters feel it’s a dangerous world.
3. Trump’s attacks on the Supreme Court probably won’t hurt its legitimacy
Although public esteem for the Supreme Court has declined over the past 20 years, that doesn’t appear to be related to presidential conflicts with it. Rather, support for more general concepts like democracy and the rule of law seem to drive public regard for the Court. Simply put, the more individuals value ideals like free speech and are willing to follow laws they disagree with, the more likely they are to hold the Supreme Court in high esteem.
To investigate this, we conducted a survey experiment to measure whether presidential attacks on the Supreme Court’s decisions influenced public support for the court. To do this, in February 2019, we had survey respondents read a fictional account of a critique of a Supreme Court decision attributed to Obama. We then compared their views of the Supreme Court to respondents who read no presidential criticism of the court’s decision.
We found presidential criticisms of the court’s prominent decisions, such as those involving immigration, had no effect on public esteem for the court. Interestingly, when presidents attacked less well-known decisions, such as wetlands protection, support for the court increased slightly. Although our survey experiment did not specifically ask about Trump’s conflicts with the court, our results are corroborated by a similar study on the topic, suggesting Trump’s attacks are unlikely to harm the legitimacy of the court.
4. But Trump’s attacks may threaten the safety of judges
Just ask U.S. District Judge James L. Robart. After Trump referred to him as a “so-called judge” for granting a temporary restraining order against the president’s travel ban in February 2017, Robart’s personal information was posted on the Internet, and he received more than 100 death threats.
Examples like these highlight an overlooked result of verbal attacks on the judiciary: growing evidence that violence against judges has been increasing in recent years. Although it is difficult to pinpoint why judges are more often being physically threatened, the verbal attacks may well be related.
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Paul M. Collins Jr. is a professor of legal studies and political science and director of legal studies at the University of Massachusetts at Amherst.
Matthew Eshbaugh-Soha (@EshbaughSoha) is a professor of political science and chair of the political science department at the University of North Texas.
They are the authors of “The President and the Supreme Court: Going Public on Judicial Decisions from Washington to Trump” (Cambridge University Press, 2019).