Courts become turbocharged battleground in Trump era

The nation’s courts have become a central battleground for President TrumpDonald John TrumpBusiness school deans call for lifting country-specific visa caps Bolton told ex-Trump aide to call White House lawyers about Ukraine pressure campaign: report Federal prosecutors in New York examining Giuliani business dealings with Ukraine: report MORE’s policy agenda, posing challenges for the third branch of government that has long sought to insulate itself from partisan politics.

As more of the president’s policies fail to gain traction in Congress, he has increasingly turned to executive actions to set them in place. Outside groups have filed lawsuit after lawsuit challenging those measures, leaving their fate in judges’ hands.

Courts have long played a role in sorting out messy policy fights, but legal experts who spoke to The Hill believe the growing polarization in Washington has increasingly thrust the courts into the political realm. 

“The reason you get these fights moving to the courts is people can't agree,” said Aziz Huq, a law professor at the University of Chicago. “The reason they can't agree is that there's more polarization.”

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Trump has also singled out the courts for abuse, personally attacking judges when he dislikes their decisions and questioning their motives.

On Twitter alone, Trump has attacked courts, judges and legal figures at least 31 times since launching his presidential bid in 2015, according to a count by The Hill. 

The fights are also on the rise given Democratic control of the House, which divided control of Washington after two years in which Turmp had the benefit of a Republican-controlled House and Senate.

“I certainly agree with the idea that the federal courts are going to remain a battleground for partisan politics,” Huq said, noting the ongoing court battles already centered around political topics, like Republican attempts to repeal ObamaCare.

Trump was forced to concede earlier this month on one of his administration’s biggest goals — getting a citizenship question on the 2020 census — after it was tied up in several federal courts for a year and was ultimately blocked by the Supreme Court.

He’s also seen his immigration efforts held up by the courts, from an injunction blocking the administration from tapping military funds to build Trump’s long-promised wall on the southern border to rulings against policies for asylum-seekers.

Just last week, a pair of federal lawsuits were filed challenging a new rule restricting which migrants can claim asylum at the border — the same day the rule went into effect.

There are also a litany of subpoenas regarding his business and financial records sought by congressional, state and local investigators. The president has sued twice to block banks from complying with the subpoenas, and on Thursday a federal judge allowed him to participate in a lawsuit filed by House Democrats seeking his federal tax returns.

As their dockets have been filled up by Trump and his opponents, judges have questioned whether they should even be involved in some of the cases. 

Washington, D.C.-based Judge Trevor McFadden earlier this year dismissed a lawsuit filed by House Democrats over Trump’s attempt to divert military funds for a border wall, saying the lawmakers didn’t have the standing to challenge it in court because they had “several political arrows in its quiver” to use instead.

But McFadden didn’t close the door on the prospect entirely, writing that he “does not imply that Congress may never sue the Executive to protect its powers.”

Judges — including the Supreme Court — have repeatedly upheld lawmakers’ powers to investigate the executive branch, a precedent Trump has sought to challenge while fending sweeping congressional investigations of his administration and businesses.

The courts must also contend with Trump’s repeated attacks on judges with whom he disagrees, something his critics say could raise doubts about whether decisions can be reached without undue pressure.

Experts say that there’s no evidence of judges changing their rulings based on the president’s comments. 

But they also argue that Trump’s criticism differs from those offered by past elected officials, in that he targets the judges on a more personal level — most infamously his attacks on U.S. District Judge Gonzalo Curiel over his Mexican heritage that even made some of Trump’s supporters uncomfortable.

The president earlier this month blasted a federal judge who blocked the Justice Department from swapping its legal team in the census case, noting on Twitter he was “Obama-appointed.”   

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Trump has repeatedly hammered the 9th Circuit Court of Appeals, calling it a “complete [and] total disaster” and even saying once he was considering breaking up the liberal-leaning circuit that has ruled against his immigration policies. He has since moved quickly to stock the San Francisco–based court with judges he nominated, which could tilt its ideological balance.  

While attacking judges isn’t a new tactic for Trump, it certainly more closely intertwines partisan politics with the judicial actions. That perception is unlikely to end any time soon, with the number of court challenges involving Trump growing by the day.

Stephen Burbank, a professor at Penn Law, said that judges should consider both their independence and their accountability for legal decisions, but that neither factor should outweigh the other.

“If the people in this country come to believe that judges and the courts of which they are a part are merely agents who have a duty to carry out the policy agendas of those who selected them,” Burbank said, “then the rule of law really is on its way out.”

Burbank roundly criticized Trump’s own attacks on the judiciary, saying it could help to further erode the public’s trust in institutions. 

“He doesn't understand American institutions of government, nor does he give a damn about them as far as I'm concerned. And so it's not surprising that he attempts to demonize judges and courts, when convenient,” he said.

“President Trump treats people and institutions the way a parent treats a 3-year-old,” Burbank added. “And one can only hope that our institutions are sufficiently robust to withstand it.”

Trump’s defenders are quick to point out that former President Obama also did not pull his punches when he disagreed with court rulings. 

Obama famously condemned the Supreme Court during his 2010 State of the Union address for its ruling in the Citizens United case, as justices looked on in the House chamber. Chief Justice John Roberts later called the moment “very troubling.”  

They also say the president, as well as any other elected official, has the right to criticize judges when they believe the courts have overreached. Lawyers at the White House and the Justice Department have often expressed frustration when judges issue nationwide injunctions blocking Trump’s policies. 

Vice President Pence during a May speech to the conservative Federalist Society said the administration would ask the Supreme Court to prevent lower courts from issuing such injunctions, calling them an “unprecedented” example of “judicial obstruction” that prevents a “duly-elected president of the United States from fulfilling his constitutional duties.”

“The more these judges weigh into these political matters ... they undermine the legitimacy of the court and make it more likely that the president or Congress will make a political attack on the courts,” said Mike Davis, a former Republican Senate and White House aide who runs the conservative Article III Project. “Don’t go into the political arena if you don’t want to take political punches.”

But Davis said there is a line for all politicians who feel the urge to lash out against judges with whom they disagree.

“They are sitting ducks, they can’t fight back,” he said. “They are not above being attacked, but you have to be very careful how you do it ... When judges are exercising their judicial power, I think it’s inappropriate for politicians to make attacks on judges.”

Joshua Siegel contributed.