As it turned out, no federal judge has ever been removed from office for overstepping the rule of law, absent corruption, bribery or treason. Today, the legal profession and the political branches alike have developed a powerful norm against even suggesting that Hamilton’s safeguard against judicial overreaching should be used. And even Trump is meekly abiding by Judge Robart’s national restraining order. That leaves only the comparatively tepid remedy of public criticism, transparently toothless as it is.
And criticism is far more toothless coming from Trump. Trump’s comments are likely to be a lot less effective than Obama’s in swaying the courts to his favor, because Obama was appealing to people whose good opinion the judges value, and Trump is not. Most federal judges don’t interact much with the kinds of people who voted for Trump, and they don’t fear alienating them. To the contrary, standing up to Trump will win you awards at the next bar association dinner. But standing against the abuse of Obama would have required genuine courage, because Obama had behind him the opinion of the majority of the legal professional and academic elite, and that’s far more important to judges than the opinions of the common folk. And that’s an even more alarming reality to contemplate, because rule by a professional elite lacks even the brute majoritarianism of rule by a mob.
The solemn duty of the federal courts — the reason we give them life tenure — is to interpret the law as originally written, without fear or favor or concern for outside political pressure. Politicians like Trump and Obama who seek to undermine that independence with public campaigns against the courts in pending litigation are acting improperly. Judge Gorsuch has told Democratic senators that comments like Trump’s are “disheartening” and “demoralizing,” and he’s right. But our system has freed the courts from any accountability for abusing their power and disregarding written law. They have too often invited contempt, and now they face a president who doesn’t understand why they shouldn’t receive it. That’s a tragedy for all of us.