Sticks, Stones, and So-Called Judges: Why the Era of Trump Necessitates Revisiting Presidential Influence on the Courts

Quinn W. Crowley

In the United States, there is a long history of Presidents and other elected officials clashing with the courts. These clashes have often been about complex and significant issues, including the role of judicial review in American jurisprudence, slavery, New Deal legislation, and the treatment of Native Americans. Presidents choose to attack the judiciary for a number of reasons, but it is not entirely clear where the line should be drawn between legitimate acts of presidential dissent and acts of active hostility meant to undermine the legitimacy of the judiciary. Moreover, what is the consequence of a judiciary whose legitimacy is weakened over time? While the legislative branch is able to constitutionally alter the courts, primarily via jurisdiction stripping and judicial impeachment, the executive is much more limited in terms of legitimately checking the judicial branch. This Note concludes that, while President Trump’s behavior regarding the judiciary has been the subject of intense media scrutiny during his first two years in office, it is important to place his comments and actions in a historical context by looking at the examples set by past Presidents. Through this frame of analysis, this Note concludes that, although President Trump’s rhetorical attacks on the independence of the judiciary—particularly in the criminal context and in targeting individual judges—have been numerous and unprecedented, President Trump is also quietly shaping the makeup of the judiciary in a way that could become even more drastic if his administration embraces a modern Court-packing plan or continues to make judicial appointments at staggering rates.

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