The Trump Administration’s Attacks on the Courts Pose a Serious Threat to Our Democracy

  • December 19, 2017

Since the founding of our democracy, the courts have played a vital role in ensuring that the fundamental rights and liberties etched in our Constitution are made real for all Americans.  By reviewing the lawfulness of congressional and executive actions, the courts help preserve the delicate balance of power between the branches of our government and ensure that government officials do not abuse the authority granted to them by the American people.

The Trump administration’s pernicious verbal assaults on judges who have found his policies to be unlawful pose a profound threat to the legitimacy and independence of the courts.  The President delegitimizes judges who rule against him, calling them “so called,” “unelected,” and “unfair” judges.  He derides adverse judicial opinions as “ridiculous” and “disgraceful.”  He claims that the courts are putting the country in peril by overturning certain of his immigration policies and will be to blame in the event of a future terrorist attack.  He and his top advisors have even questioned whether the courts have the power to review the constitutionality of his policies.

These attacks on the courts are troubling because they slowly erode the courts’ legitimacy, and undermine their ability to fulfill their critical mandate to say what the law is, and to ensure that no one, including the President, stands above the law.  They are even more disturbing when viewed in the context of other Administration actions that subvert the rule of law, including pardoning former Arizona sheriff Joseph Arpaio in the midst of his judicial contempt proceedings, improperly interfering with Department of Justice law enforcement investigations, and recently claiming that the President is above the law because “he is the chief law enforcement officer.

The Trump administration’s attacks on the courts are also alarming because they follow the script used by authoritarian regimes abroad seeking to curb judicial checks on their power.  Authoritarian leaders in Turkey, Hungary, and Poland have all engaged in sustained rhetorical attacks against that judiciary that foretold a broader assault on judicial independence, outright defiance of court orders, and a dismantling of the checks and balances that fortify democracy.

We have developed a white paper (as PDF) we are releasing today detailing the Trump administration’s persistent and pernicious attacks on the courts and explaining how those assaults signal a grave danger to our democracy.  The white paper includes a tracker, which will be updated regularly, compiling all of the Administration’s attacks on the courts in one place.  It also includes a chart illustrating the international analogy in Turkey, Hungary, and Poland.

We will be coming forward with more specific recommendations for what various government officials and civil society members can do to help preserve the integrity of the courts.  But in the meantime all Americans should: (1) recognize the President’s attacks on the courts for what they are – a clear attempt to reduce a constraint on his power and (2) resoundingly reject any further Presidential attacks on the legitimacy and independence of the judiciary.

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