Update: Among those feeling threatened by Trump's comments is apparently his Supreme Court nominee, Neil Gorsuch. Gorsuch told Sen. Richard Blumenthal (D-Conn.) on Wednesday that Trump's comments are "disheartening" and "demoralizing" to the independence of the judiciary. Blumenthal relayed Gorsuch's comments to reporters, and a Gorsuch spokesman confirmed them.
The U.S. Court of Appeals for the 9th Circuit is now weighing what to do with President Trump's travel ban. And Trump did his best Wednesday to put his thumb on the scales of justice.
Continuing a highly unusual days-long effort by a president, Trump issued a stark warning to the three-judge panel and, really, the entire court system: Run afoul of me, and you may just pay a price.
In a speech in front of law enforcement officials in Washington, Trump suggested to the three judges that they would marginalize themselves politically if they decide the wrong way. Trump has said similar things about the judge who previously halted his travel ban — albeit after the decision had come down.
The comments were oblique, but Trump's point was crystal clear.
“If these judges wanted to help the court in terms of respect for the court, they’d do what they should be doing,” Trump said, in a comment thick with subtext. “It’s so sad.”
He added: “I don’t ever want to call a court biased, so I won’t call it biased. But courts seem to be so political, and it would be so great for our justice system if they would read [the law] and do what’s right.”
If that isn't a threat to marshal support against the American court system and fight it politically, I'm not sure what is. Trump is basically saying: That's a nice reputation you've got there. It'd be a shame if something happened to it.
Trump has been dancing around this idea ever since the first judge halted his executive order on Friday. In tweets spaced out over the weekend, he asserted that the judge was overstepping his authority and suggested any future attacks might be laid at his — and other judges' — feet.
Some tweets were targeted at the judge personally. But others, tellingly, addressed the “the courts” and “the court system” as an entity.
“If something happens blame him and court system.” “The courts are making the job very difficult.” Trump's ire isn't just directed at the judges directly involved in his case; he seems to be girding for a showdown with other judges who might dare to try to rein in his executive power.
It's something experts on executive authority have been chewing over. Given Trump's populist campaign, admiration for authoritarian leaders and expressed skepticism toward the political establishment, some think it's possible he takes on the judicial establishment, too.
“They're spoiling for a fight, and that’s what populists do,” said Daniel P. Franklin, a professor at Georgia State University. “And I think that’s the way it plays out — maybe not on this issue, but on something.”
That piece dealt with the possibility that Trump might actually take this to its extreme and ignore what the court tells him to do. But he can do plenty before he goes that far to try to undermine the judiciary and send a message. Even if he doesn't intend to force a legal showdown over its authority, comments like the ones Trump made Wednesday at the very least seem geared toward “working the refs” — i.e., sending a message that judges, who are supposed to be apolitical, won't be immune from his political wrath. And when they issue a decision he doesn't like, Trump is saying, they're going to pay the same price as a senator who votes the wrong way on a bill.
This is something that's troubling to those who would prefer to keep politics out of the judiciary. But as with many other political norms, Trump is increasingly taking a hacksaw to this one.