What does ethical criticism of a judge or judgment require? Or, to put it slightly differently, on what basis might we say that a criticism of a judge or judgment is improper?
Recent comments by Donald Trump make this question seem straightforward. The President’s tweets were clearly inappropriate. It is not acceptable for the President to refer to a Federal Court trial judge as a “so-called judge”, to describe the judge’s decision as terrible (Feb 4), to call a Federal Appeals Court judgment a “disgraceful decision” (February 10) and, most chillingly, to say “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system” (February 5).
On closer reflection, however, identifying exactly why Trump’s statements were wrong is complicated. Is the problem that the comments came from the President? The tone? The content? What is it that makes them so obviously wrong?
In terms of who made the comments, there is no doubt that the President brings the authority of the office to comments that he makes, which suggests some care ought to be taken when making them. A Presidential criticism is not the same as an academic’s, lawyer’s or member of the public’s; it has greater weight, and a greater capacity to undermine “public confidence in an independent judiciary” (the point emphasized by Andrew Flavelle Martin, here). At the same time, however, the separation of powers means the legislative, executive and judicial branches exercise competing authority, which further means that criticism and tension between them are unsurprising and to be expected.
As defenders of Trump were quick to point out, he is not the first President to criticize a judge or judgment, or to challenge the judicial branch’s attack on Executive action. In his 2010 State of the Union, President Obama said “With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests”. More dramatically, 80 years ago, on February 5, 1937, Franklin Roosevelt announced a plan to increase the Supreme Court to 15 judges, apparently in response to the Court’s reversal of New Deal legislation; Roosevelt’s plan did not achieve legislative approval, but shortly after it was announced Court decisions shifted so that the majority upheld the constitutionality of New Deal legislation.
Those other Presidential statements and actions may also have been improper, but that they occurred suggests that the problem with President Trump’s comments go beyond the fact that they involved the President criticizing the judiciary. After all, if the judicial branch overreaches, who will hold them to account if not actors from other branches of government? Despite the shambles of the current administration, the executive branch does not have a monopoly on overreach, incompetence and bad behaviour. And given the judiciary’s (proper) independence, public expressions of disapproval are one of the few avenues those branches have to hold appointed judges to account.
What, then, about the tone of Trump’s comments? Certainly the comments are harsh and disrespectful, as well as vulgar. But harsh criticism of judges and their decisions is also a robust feature of American life; indeed, one could find harsher (if cleverer) attacks on judgments in decisions by Justice Scalia (e.g., “The Court’s next bit of interpretive jiggery-pokery”; “an opinion lacking even a thin veneer of law”; “The opinion is couched in a style that is as pretentious as its content is egotistic”) . Justice Scalia was neither vulgar nor crude, and I think it is fair to say that Trump’s vulgarity and crudity demeans the office of the Presidency. Trump’s crudeness and vulgarity is, however, a problem that extends beyond his attacks on judges. It is a problem, but it is not this problem.
That leaves, finally, the content of Trump’s comments: that the issue is not that what he said was harsh and vulgar, or that he is the President, but is rather that what he said is substantively indefensible. To me, that’s it. The true issue with what Trump said is that it is wrong, not that it is critical. There is nothing problematic about lawyers, scholars or the public criticizing judicial decisions, and even doing so harshly. There is nothing wrong with an elected official criticizing judicial decisions, and even doing so harshly. But there is everything wrong with criticisms that are bullshit; that demean the judge; that ridiculously overstate the consequences of a decision; that go beyond reasoned disagreement to hyperbolic dismissal and – worst of all – that seem to invite personal attacks on a judge.
In saying this I don’t think I’m necessarily saying anything different from other critics of Trump. But I do think that we need to be careful in identifying the real problem. Otherwise we may suppress legitimate engagement and criticism of judges and judicial decision-making. And in these times of alternative facts, we need to remember that truth matters, and that threats to judicial independence and confidence in the administration of justice come not from criticism, or even from harsh criticism, but come instead from demonstrably false criticism.