Checks and Balances, Jefferson, Checks and Balances

President Trump has denounced the U.S. courts that have thwarted his political agenda, including his attempts to ban some Muslims from entering the United States. He has threatened to break up the Ninth Circuit—widely perceived to be too liberal—and he has complained about the decisions of what he calls “so-called judges.”

Trump’s rhetoric is extreme, and perhaps irresponsible, but it is hardly unique. The Judicial Branch of the American government has annoyed or outraged American presidents from the beginning.

When the Supreme Court declared in Worcester v. Georgia that the Cherokee Indians were a distinct nation state that was entitled to considerable legal sovereignty, President Andrew Jackson, who was determined to remove the Cherokee to make room for white settlement, reportedly said, “John Marshall has made his decision. Now let him enforce it.” Jackson ignored the court and pursued removal policies that led to the Trail of Tears.

More than 100 years later, in 1958, President Eisenhower is reported to have said, “I have made two mistakes [as President], and they are both sitting on the Supreme Court.” He was referring to Chief Justice Earl Warren and associate justice William Brennan.

FDR was so frustrated by the Supreme Court’s habit of striking down his prized New Deal alphabetical legislation that he tried to pack the court by raising the number of justices from nine to twelve. The Constitution does not specify how many justices there must be. Still, FDR’s scheme failed. The American people are very conservative about their Constitution. Not even the Great Depression coupled with the enormous authority of FDR could convince them to refashion the Supreme Court.

FDR’s fifth cousin Theodore Roosevelt was disgusted to see his progressive program hamstrung by the federal court system. By 1910 he was so frustrated that he proposed something called Judicial Recall, meaning that unpopular or unprogressive court decisions could be referred and over-ridden by a simple majority of the American people. This idea was so radical that it almost cost TR his closest friendship, with Henry Cabot Lodge of Massachusetts. It may have cost him re-election in the notorious Bull Moose Campaign of 1912.

Our own hero Thomas Jefferson decried the Marshall court’s determination to read the U.S. Constitution in the broadest, boldest, most centralizing, and most capitalistic manner. Jefferson wanted a weak, literally-interpreted constitution, and he believed that states are usually more competent than the national government in protecting the rights of citizens. Jefferson spoke of Marshall’s “twistifications,” his tortured legal metaphysics, and his deliberate distortion of the spirit of the U.S. Constitution. Jefferson was so upset by Marshall that he even resorted to ad hominem, accusing his distant cousin of having “loose lounging manners,” and noting that Marshall frequented taverns.

During the last hours of the discredited Adams administration, the Federalists had packed the courts with Jefferson’s sworn political enemies, including John Marshall, and just to make things harder for Jefferson they reduced the number of Supreme Court seats from six to five. That was designed to prevent Jefferson from naming any Supreme Court justices. Once he was safely in power, Jefferson convinced his republican congress to pass the Judiciary Act of 1802, which, among other things,  punished Marshall and the other Supreme Court justices by making them ride circuit—that is, travel to districts far removed from the District of Columbia to hear cases as individual federal judges. Given the horrific travel logistics of the Early National Period, this was a clever, if petty, way of teaching Supreme Court justices humility.

My point here is that Presidents like the U.S. court system when it affirms their policies, and they find it frustrating (or unbearable) when the courts thwart their will. Sometimes (as with Barack Obama and Eisenhower), it is not much more than exasperated venting. But sometimes, as with FDR, TR and Andrew Jackson, it breaks out into defiance.

In the end, the courts usually win. In 1974 Richard Nixon handed over the secret tapes that forced him to resign. Al Gore graciously accepted the 5:4 decision of the Supreme Court in 2000, even though it was a strictly partisan vote, and even though he quite likely the actual winner of the presidential election. Roe v. Wade revolutionized the reproductive history of the United States, even though most legal commentators regard that 1973 decision as a public policy initiative founded on a rickety legal argument.

Perhaps most important in the present context, the Trump administration has grumbled but nevertheless accepted the U.S. court system’s determination that his partial Muslim ban is unconstitutional. To which I say, Thank God for the separation of powers. As John Adams put it in a letter to the Sage of Monticello, "Checks and balances, Jefferson, however you and your party may have ridiculed them, are our only security.”

Supreme Court of the United States (c. 1935) from the Federal Judicial Center.