Since its inception, the United States of America has stood firmly committed to the principle of an independent and empowered judiciary first espoused by U.S. Supreme Court Chief Justice John Marshall in the 1803 case of Marbury vs. Madison.
In Marbury, the U.S. Supreme Court’s interpretation and application of a rather obscure federal congressional act, applied to the attempt by William Marbury who sought a federal appointment during the “lame duck” period between the presidency of John Adams and that of Thomas Jefferson.
It shouldn’t be too difficult to figure out who would win this federal skirmish between former presidents because after all, last time I checked, only one of those two men had been designated a place on U.S. currency, a place on Mount Rushmore and had a monument erected in his honor in our nation’s capital. Hint: it wasn’t John Adams.
In Marbury vs. Madison, William Marbury sought to have the federal court compel his appointment to ironically a justice of the peace position he had been appointed to by President John Adams, at the end of his presidency and before newly-elected President Thomas Jefferson was to take office.
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Adams and Jefferson were members of two opposite political parties and were bitter foes. The administrative order appointing Marbury had been signed by then-Secretary of State John Marshall, but never properly delivered allowing it to take effect.
Coincidentally (or diabolically) Marshall became the fourth Chief Justice of the United States under President Jefferson and as a first order of business ruled against the appointment sought by William Marbury.
In order to even consider whether Marbury had a legal right to his appointment, Chief Justice Marshall wrote an often quoted legal opinion for the majority of the U.S. Supreme Court stating that as a matter of constitutional principle: “It is emphatically the province and duty of the judicial department to say what the law is...If two laws conflict with each other, the courts must decide on the operation of each...This is of the very essence of judicial duty.”
There is no more compelling statement standing as the bedrock foundation upon which our nation’s independent judicial authority has been built.
President Trump, by his actions and his rhetoric, seeks to sweep away the uniquely essential role of the federal judiciary with his immigration ban executive order and over-the-top criticism of our federal judiciary.
Even before he became the nominee of the Republican party, President Trump dismissed United States federal judge Gonzalo Curiel, who was presiding over one of the two class-action lawsuits then pending against Trump University. President Trump referred to Curiel as a “Mexican” even though Curiel, having been born in Indiana, is as American as President Trump.
More troubling was the 12 minutes then-candidate Trump spent railing against Curiel, during a campaign rally, referring to him as a “hater” and for implying that the much vaunted border “wall” he proposed would keep those such as Curiel outside of the United States.
Most recently, U.S. federal Judge James Robart issued an order putting at least a temporary halt to Trump’s highly criticized “travel ban.” Trump referring to Robart, an appointee of former President George Bush, as a “so-called judge” and through a torrent of “tweets” stated the following: "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.”
"Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision.”
“What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?”
It is dangerous for one of the three linchpin pillars of American democracy to openly and viciously challenge the authority of another in this manner. President Trump is not a private citizen. He sits at the top of the Executive Branch of the United States government and his challenge to the federal courts is shockingly disrespectful of U.S. constitutional history and precedent.
It is also uncivilized and behavior below the dignity of the behavior we expect of the president.
In this modern day and time, civility has become perceived as unnecessary. The byproduct of communication via device has begotten an alarming amount of interpersonal bullying and overall cultural insensitivity.
However, President Trump takes being uncivilized and boorish to the dangerous level of promoting a troubling distrust of, and potential disobedience to the authority of our federal judiciary and ultimately to our entire system of a government.
No fewer than two well-respected national newspapers raised the question this week of what might happen if President Trump chooses to disregard one or several judicial orders. This whole matter is quickly approaching Nixonian levels of potential inter-branch conflict not seen in America since the Watergate era.
I advise President Trump to borrow a copy of his colleague Abraham Lincoln’s Gettysburg Address to be reminded that the American government, and each of its three branches, in order to be effective, must be “of the people, for the people and by the people.”
President Trump should end his vitriolic attack on judges and the courts immediately.
Mark T. Harris is a continuing lecturer at the University of California, Merced. He has served a a federal judicial law clerk to the former Chief Judge of the U.S. Federal District Court in the Central District of California and has practiced and taught law for over 35 years.