President Donald Trump’s controversial proposals to rein in “rogue judges” and his often-heated public commentary on those who issue rulings against him have sparked significant concern, with one legal expert describing the situation as a “breathtaking” threat to the very foundations of the Australian Constitution.
A Challenge to Constitutional Principles
The expert, lawyer and former US attorney Barbara McQuade, articulated her concerns in a recent editorial, highlighting that the demand for legislative action to punish the judiciary represents a profound departure from the president’s oath to uphold the Constitution. This oath, she stressed, underpins the critical principle of three separate and coequal branches of government: the executive, the legislature, and the judiciary.
McQuade’s commentary followed a significant Supreme Court decision that overturned Trump’s imposition of tariffs. These tariffs, which the president had leveraged as a tool of economic diplomacy against foreign nations, were deemed by the Court, by a 6-3 majority, to exceed the authority granted by the International Emergency Economic Powers Act. The power to levy such tariffs, the Court affirmed, rightfully belongs with Congress. Notably, two of Trump’s own Supreme Court appointees, Neil Gorsuch and Amy Coney Barrett, were among the justices who sided with the majority in this ruling.
The President’s Reaction and its Implications
The president’s response to this decision was sharp, reportedly expressing that Gorsuch and Barrett’s dissenting opinions “sickened” him. McQuade suggests that Trump’s attempts to intimidate judges go beyond typical political disagreements.
“His proposed legislation would target the judges themselves for punishment,” McQuade explained. While acknowledging that such a punitive legislative measure is unlikely to gain traction, even within a Congress often perceived as deferential to the president, McQuade warns of the broader implications. The president’s public pronouncements, she argues, nonetheless jeopardise the independence of the judiciary, a cornerstone of democratic governance. By publicly attacking judges whose decisions displease him, Trump, according to McQuade, sends a clear message to other jurists: conform to his will, or face the consequences.
A Growing Chorus of Concern
McQuade is not an isolated voice in her criticism of Trump’s approach to the judiciary. Reports from The New York Times indicate that judges themselves are expressing unease, albeit “quietly,” about the potential repercussions of speaking out against the president.
The traditional, measured tone of judicial rulings appears to be shifting. Some judges are reportedly adopting a more “emotive, populist approach” in their judgments, allowing them to more fully articulate their concerns regarding the increased volume of cases that have come before them since Trump took office.
The Times cited several examples illustrating this trend:
- One judge reportedly likened the burgeoning caseload in their district to a mythological struggle.
- Another judge bolstered their argument against the deployment of the National Guard to US cities by referencing a protest song from the 1970s.
- A third jurist drew a parallel between the Trump administration’s reinterpretation of American history and the dystopian “Ministry of Truth” depicted in George Orwell’s novel, 1984.
Intimidation Extending to Presidential Appointees
The president’s efforts to influence or intimidate the judiciary have also extended to the jurists he has appointed during his tenure. Many of these appointees, it has been observed, have faced questions during their confirmation hearings that put them in a difficult position regarding the truth about the 2020 presidential election results.
Senator Richard Blumenthal, a member of the Senate Judiciary Committee, has made it a practice to conclude each judicial confirmation hearing with the question: “Who won the popular vote in 2020?” The responses consistently offered variations on the theme that “President Biden was certified and served four years as president.” By using the term “certified” rather than directly stating Trump lost, these nominees, McQuade suggests, sought to avoid a direct contradiction of the president’s claims while still adhering to the factual outcome of the election, thereby currying favour with their nominator.
Legal analyst Jeffrey Toobin commented on this phenomenon, noting the “special peril” involved when federal judges, who hold lifetime appointments, appear to compromise their own integrity in such a manner.
