Stop Attacking the Court!

Throughout both his presidential terms, Donald Trump has intemperately attacked federal courts, including the Supreme Court, whenever they ruled against him. Trump loyalists in and out of government, following his lead, are currently directing their ire at Justice Amy Coney Barrett.

Although Justice Barrett voted to overturn Roe v. Wade and to strike down affirmative action in college admissions, she recently voted to uphold birthright citizenship and to block an administration-backed effort to restrict mail-in voting practices.

In response, Megyn Kelly called Justice Barrett a “turncoat.” Rep. Nancy Mace (R-SC) said she should be removed from the bench. Right-wing commentator Matt Walsh called her a DEI hire, “little better than Ketanji Jackson.” In their view, if you fail to uphold President Trump’s position on every single case, you are either an incompetent judge or a traitor.

The President wants to undermine confidence in the Court in order to weaken further the court’s constitutional check on his freedom of action. The other constitutional check, Congress, has seemingly abandoned its role in checking the exercise of executive power. In pursuing this goal, the President advances two false conceptions of the Court’s proper role in our system. Both these deliberate falsehoods need to be decisively rejected.

The first sees the Court’s proper role as deciding policy questions and coming down on the “right” side—e.g. Trump’s side—of policy issues. Ironically, this is a criticism that conservatives have long levelled at a court they thought too progressive.  The Court’s proper focus is on the law, not on policies. The Court engages in statutory interpretation when justices decide what a law means and whether the actions of presidents or bureaucrats are legal under that law. They engage in constitutional interpretation when justices ask whether a particular law is in fact constitutional.

The second deliberate falsehood is that the Court should be responsive to the president’s electoral mandate and hand down rulings that facilitate achievement of the president’s goals. Trump has been pushing this argument since his reelection by a narrow majority of the popular vote.

However, this assertion is fundamentally at odds with our Constitution, which emphasizes the need for checks-and-balances and treats aroused, transient majorities as inherently dangerous to the rights of minorities. In order to meet its proper constitutional responsibilities, the Court needs to be independent of the other two branches precisely because its judgments about the law will often impact policies in ways that upset participants on one or both sides of the policy issue.

Respect for our constitutional system of checks-and-balances is a core value for Our Republican Legacy. We condemn intemperate efforts to undermine confidence in the courts or to question the integrity or intelligence of individual judges.

Beyond this, Republicans in government and the media should engage in constructive dialogue with voters as to the proper role of the Court—a role that necessarily involves judicial independence and the very real possibility that the president’s preferences will not always prevail.