The latest eruption of indignities (infra dignitatum – below the dignity of the Oval Office) have now educed a prudent and timely rebuke from Chief Justice John Roberts. Bravo!
POTUS’ outbursts concerning judges and the judicial process even caused Supreme Court Nominee Judge Neil Gorsuch last year at his confirmation hearing before the Senate to bemoan previous outbursts as “disheartening and demoralizing.” (I would add “demeaning”).
Ad hominem attacks on particular judges and courts, while questioning the legitimacy of the judicial process itself, is flat-out wrong. Respectful disagreement with a result and the reasoning underlying a judicial decision is surely appropriate for fresh-air transparency and accountability, but these latest criticisms undermine the integrity and legitimacy of oath-driven exercises of constitutional adjudication.
Lawsuits typically end with “three little words”: Ordered, Decreed, Adjudged. These potent words almost always result in quiet compliance. The reason: centuries of built-up respect for the judicial process. For example, whatever else may be said of President Nixon, he promptly obeyed the unanimous Supreme Court ruling to turn over the Watergate tapes, knowing that would end his presidency, without fulminations about or challenge to the final judicial decree.
In the “Nature of the Judicial Process,” Benjamin N. Cardozo when he was chief jJudge of the New York State Court of Appeals, observed that judges are not like knights-errant (nor Don Quixotes, for that matter!) wandering the countryside looking for causes (or trouble) to satisfy their personal or utopian vision of good versus evil. They are invested with the responsibility to decide only cases and controversies that are brought by others to the dockets of their courts, according to the law and Constitution.
This great nation has endured some major disturbances of the equilibrium among the branches of governance. Chief Justice John Marshall sowed seeds with his foundational Marbury vs. Madison, the bedrock principle of ultimate judicial review, that the “law is what the Supreme Court says it is.”
Chief Justice Marshall’s fellow Virginian, President Thomas Jefferson, (philosophical and political adversaries) was the net losing official in the Marbury case. Another frontier neighbor, President Andrew Jackson doubled down and showed his disdain for Marbury itself, and the chief’s opinion in a later case, Worchester v. Georgia, during Old Hickory’s presidential tenure. Marshall ruled in favor of the Cherokee Tribe in a case that might have mitigated the “Trail of Tears” atrocities from the forced removal of the tribe members from their native homelands. Instead, Jackson “uttered” an infamous wisecrack: “Marshall has made his decision. Now let him enforce it.” That ad hominem insult constituted a paraphrased disdainful institutional slap, confirmed in a Jackson private letter to a friend that “the decision of the Supreme Court has fell still-born, and they will [find] they cannot coerce Georgia to yield to its mandate.”
(Jackson’s portrait is often seen proudly and prominently placed behind the shoulder of the present occupant of the Oval Office in many photo ops.)
During the convulsion of the nation’s Civil War, President Lincoln who had shown his public disagreement with the infamously dreadful Dred Scott decision, also harbored a deep distrust of its opinion author, Chief Justice Taney, whose Confederate sympathies were openly known. Thus, the great president’s still controversial suspension of the Great Writ and his injunction to Union generals to ignore a series of habeas corpus rulings from Taney and other judges can be understood better in that context. Of course, the executive frustration that Lincoln faced in confronting a myriad of difficult and heart-wrenching decisions to save the Union in whole may have produced a false-positive contradiction to his renowned respect for the law. The true facts of history, like the unearthed Jackson letter, may be discerned from a hyperbolic sentence in Lincoln’s public letter and defense of his suspension of habeas corpus, sent to Mayor Erastus Corning of Albany, New York in 1863: “Nothing is better known to history than that the courts of justice are utterly incompetent to such cases.”
In the modern era, President Roosevelt was so frustrated by adverse Supreme Court rulings that blocked some of his efforts to deal with the Great Depression that he unsuccessfully moved to pack its membership (some say “successfully” by the “switch in nine” case that followed the failed attempted).
While the nation holds its breath for the next 280-character burst against the judicial process and its ministers of justice, these few historical clashes between the executive and judicial branches may help to reassure that presidents may come and go, but the 3 little words that punctuate the judicial process endure firmly and soundly upon the bedrock principle of checks and balances.
The latest contretemps may seem different in nature, scale, scope and format from its historical benchmarks because it occurs in the frame of our lived time and coarsened sensibilities. It also erupts in a warp-speed communication age.
Independent adjudication will continue, however, to be rendered on a record of evidence and facts, developed by the rigorous adversarial process of competing lawyers doing their jobs, too, then resulting in the most potent subsisting 3 words of all, rendered by neutral magistrates, doing their constitutional duty, too – Ordered Decreed Adjudged.
Joseph W. Bellacosa retired from his position as an associate judge on the state Court of Appeals in 2000. He also served as dean of St. John’s Law School.