"Review of George I. Lovell’s Legislative Deferrals: Statutory Ambiguit" by Beau Breslin
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We might first observe that the twenty-first century ushered in an era of greater politicization with respect to the judiciary, that is, a greater willingness by public officials especially Republicans to place judges, cases, and other judicial issues at the forefront of policy debates, national political discourse, and campaign rhetoric and fundraising appeals. But criticism of the courts for political gain has been more prevalent and systematic. Consider that from , four out of five of President George W. Trump came to power in an era of deepening partisan division. In this way, Obama shifted a federal judicial system that was in solid Republican control in to one with a narrow majority of Democratic appointees.
Trump took his oath of office in January , the federal courts were the only branch of government not obviously held by his party, and, therefore, they would seem positioned as a source of ongoing conflict and policy strain during the Trump years to come. Beyond these general assertions about why recent political trends set up the Trump administration for contentious relationships with courts, we can isolate additional aggravating factors more idiosyncratic to the incumbent president.
The first of these is Mr.
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The President and his subordinates frequently conflate political legitimacy and proper public service with individual loyalty. As Scaramucci elaborated:. And I love the mission that the President has, okay? Since the early days of the campaign…I saw the love that the people had for the President. Numerous commentators have seized on the continuing centrality of this loyalty value for a man who built both his presidential campaign and prior business empire on family and personal connections.
President Trump has expressed this idea with respect to himself on numerous occasions, perhaps most famously in his acceptance speech at the Republican National Convention RNC. After being inaugurated, the President continued with this theme and celebrated political allies by recognizing their individual attributes as much as their skill, experience, or policy acumen. These moves have been justified less in terms of establishing a new policy path than in eradicating the destructive choices of others, including Mr. This blurring of personal and political authority is likely to trigger friction with courts for several reasons.
Perhaps most obviously, a personalized approach will tend to see unfavorable court judgments as direct attacks, or instances of disloyalty, rather than principled and impersonal judgments of law. To take just one example of this disjuncture, consider Mr.
Interestingly, in those instances where the President has pushed most aggressively against individual judges, independence norms, and regular judicial procedures, these personalization tactics have been especially prominent. While populism is an open, substantively thin ideology, it is distinguished by an anti-elitism in general, and skepticism toward establishment officials and institutions in particular. This is especially likely for federal courts, staffed by highly educated professionals who are structurally sequestered from political and electoral forces.
Trump, at least in its broad strokes gave vent to some of these sentiments. So far, we have identified a number of factors that would seem to place the Trump administration on a slanted political plane leading straight to confrontations with courts. Increased politicization of the judiciary, deepening partisanship including a bench closely divided internally by partisan appointments , and, finally, distinctive attributes of the President himself in particular his personalization of politics and populist flair all seem to set us up for interbranch confrontations that could challenge long-held norms of judicial independence.
A Polarizing Court?
So where is the evidence for our anticipated spike in executive-judicial skirmishes? Notwithstanding these and other challenges, however, we have good reasons for thinking they represent less than meets the eye.
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On the whole, these results do not give us a picture of a president spoiling for a fight with the judiciary. As indicated, all of this is somewhat surprising. One initial response is not very satisfying: the President is reluctant to take on a branch that still enjoys relatively high diffuse, institutional support, especially relative to Congress and even the executive branch.
A related, and more plausible hypothesis is that the administration is somewhat reluctant to take on the judiciary in any sustained way because it understands, on some level, that independent courts, judicial review, and even periods of judicial activism understood here as regular court invalidation of government action may serve executive branch interests.
In the scholarly literature, such an argument usually takes one of two basic forms. First, relatively strong and independent courts could be a way of navigating controversial and crosscutting party issues. As Mark Graber has explained, elected officials may look to the judiciary to resolve or temper disruptive political topics, with the hope that courts will remove the underlying contentious issue by withdrawing it to a judicial forum supposedly beyond the reach of ordinary politicians.
More specifically, scholars like Stephen Skowronek and Keith Whittington argue that favorable court rulings help presidents affiliated with an existing regime maintain their legal, policy, and ideological commitments through time, even in the face of dwindling or unstable political prospects. But both of these explanations for the relative comity of the Trump administration towards the judiciary are imperfect. Undoubtedly, there is some evidence the administration is pursuing this sort of long game with its appointments strategy.
Trump seems to favor his judicial appointments for personal reasons, reflected distinction, and political payoff, and not for advancing deeply seated and long term ideological commitments.
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Given the shortcomings of these explanations, we need to adopt a different tack. While the President has never sat in public office before occupying the White House, he has repeatedly relied on lawyers and the judiciary in his prior business career and personal life. Moreover, although he has been the target of thousands of lawsuits, Trump has frequently prevailed, and, more generally, has turned to courts, litigation, and other legal transactions to protect his financial and individual interests. While admittedly preliminary, some recent work finds teasing indications of partisan and ideological disequilibrium with respect to longstanding perceptions of the courts.
But a more historical and nuanced consideration reveals a different and more dynamic picture.
Consider, in this regard, the trend lines revealed in Figure 2. This figure lays out what Democratic and Republican party platforms have had to say with respect to the judiciary for every four-year cycle from to Until the platform, both Democrats and Republicans appear to have been deferential to courts in these official party statements, generally avoiding reference to the judiciary entirely.
Beginning in , however, we can detect a notable shift in party attitudes, especially for Republicans. GOP platforms became increasingly detailed and negative in discussing courts and judges over this period while Democrats continued to give judicial politics a low profile. Thus, with the exception of , every Republican platform from has made at least some negative reference to courts and judges. These statements have objected to specific court decisions in such areas as prayer in school, criminal justice, and, of course, abortion.
In addition, beginning with the platform, the GOP also began calling for the appointment of judges whose rulings would be consistent with their policy and ideological goals. But as Figure 2 suggests, at least with respect to party platforms, this pattern of active Republican skepticism towards judicial authority and quiet Democratic complicity started to change in the twenty-first century.
In our new century significantly framed by the decision Bush v.
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