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Trump Isn't The First President To Challenge The Judiciary09:22Download

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A man walks up the steps of the U.S. Supreme Court on Jan. 31, 2017 in Washington. (Mark Wilson/Getty Images)MoreCloseclosemore
A man walks up the steps of the U.S. Supreme Court on Jan. 31, 2017 in Washington. (Mark Wilson/Getty Images)

President Trump said Tuesday that the United States Court of Appeals for the Ninth Circuit was "in chaos." He's upset with the circuit, which upheld a temporary halt on his travel ban. Earlier, he criticized what he called the "broken legal system" and said even a "bad high school student" would rule in his favor.

Historians Brian Balogh (@historyfellow) and Nathan Connolly (@ndbconnolly) say the apparent spat between the executive and judicial branches is not the first, with examples going back to the landmark Supreme Court case Marbury v. Madison, which in 1803 established the basis for judicial review.

Here & Now's Meghna Chakrabarti speaks with Balogh and Connolly, co-hosts of the podcast BackStory, which is produced at the Virginia Foundation for the Humanities.

Interview Highlights

On previous times in history when presidents and courts have clashed

Connolly: "Conflicts between presidents and the courts are a constant. I mean, you can go back as far as Marbury v. Madison in 1800, right. And there, you’ve had a number of cases prior to 1800, where the courts are reviewing cases, but the meaning of judicial review really does come about in this 1800 case. Really quickly, you have John Adams who’s lost the election to Thomas Jefferson, and he simply wants the right to pick William Marbury as a kind of midnight judge for a court in D.C. And the Supreme Court under John Marshall basically says that he has the authority to pick the justice, but doesn't have the right to have that authority protected once he's basically lost office. The only powers that the court has those that are outlined in the Constitution, not that are outlined by Congress. So, the fact that you have a president who wants to simply make an appointment in the 11th hour is by no means beyond the reach of the court to essentially refute."

Balogh: "And I think one of the reasons that that decision sticks... is Marshall was brilliant. He basically established the authority for courts to review legislation by, in essence, giving up authority, saying, ‘That legislation really didn't allow us to do this.’”

On President Lincoln and habeas corpus

Balogh: "...Lincoln has been criticized by many for suspending habeas corpus during the Civil War, but after all, it was a civil war and he had a very practical problem. It was very hard to tell who was on whose side, especially in border states like Maryland. So, you know, he needed to hold people — and he said under the president's powers during wartime, he was suspending habeas corpus. He ran into an old nemesis of his, Justice Taney. And Taney said, ‘No, no, the Legislature has to do this.’ And Lincoln, you know, he toughed it out. He said, ‘Nope, you know, I'm not going to do that. I don't care what you say, Justice Taney.’ Now, the good news for the country is the Legislature, the Congress, did meet soon after that and, in fact, gave the president the ability to do that legislatively, which made it more judicially kosher."

On Trump and the Ninth Circuit Court of Appeals

Balogh: "We've had many other moments that we can go through. I'd love to fast forward to the present, even though we're both historians. I think that what is happening right now as we look at the Ninth Circuit ruling on Donald Trump's executive order that some call a travel ban. I think what's happening now is we're seeing that words, process and evidence actually really matter. And all through the campaign, it seemed like, well, words just didn't matter. Who was going to respond? Well, the courts are responding. And once something gets to the courts, what Donald Trump has actually said in the past turns out to be a very important part of that Ninth Circuit decision. The process of how that executive order has been implemented really matters — the fact that Trump did not consult with the key agencies ahead of time. And most importantly, evidence, right? The Ninth Circuit, at least three judges, said, ‘Look, we're willing to consider what you're saying, Justice Department, but you need to show us some actual evidence that there really is some evidence that this is a threat. And if you don't want to make it public, we will consider that in camera, behind closed doors. But you need evidence.’ And, so I think we're facing the first time that Donald Trump's words are coming back to haunt him because the government, at least up ‘til now, has operated with certain processes and based on certain fact-based evidence. And they're all coming together right now."

"I think what's happening now is we're seeing that words, process and evidence actually really matter."

Brian Balogh

On Trump, Teddy Roosevelt and populist ideas

Connolly: "So, my BackStory brother is a little more optimistic than I am on this one. And I see, actually, in Trump's maneuver something that feels very similar to what Teddy Roosevelt tried and failed to do around the turn of the century, around 1912, actually. When he tried, and in this case failed to win the presidential nomination, he still raised the question of a more populist engagement with the judiciary — he wanted to be able to recall judges, to have popular elections for federal and state judges. And this commitment to a kind of popular sovereignty basically ran on the idea that the people should have the influence over the judiciary. And what I see now in President Trump's efforts — through, you know, de-legitimizing the judiciary, through his tweeting, through his attempt to speak directly to the American people — is, in effect, a kind of Rooseveltian move, the idea that the American people should be able to check their judges and, in some cases, be run by a very charismatic and strong president."

Balogh: "...I want to back to Nathan's good point about Teddy Roosevelt. You know, he was considered a progressive, a liberal reformer, especially in 1912, and what he was saying, even more specifically, was that the people had the ability — quite literally — to overturn a specific decision by a court. Now, he was referring to the state courts. But that's really pretty radical stuff, and if you're listening, Donald Trump, I agree with Nathan. Teddy Roosevelt sounds a lot like you in this case. And the only reason that Madison v. Marbury has been listened to is tradition and precedent. And we know if Donald Trump is one thing, he’s a disruptive force who has never met a tradition and precedent that he doesn't want to disrupt."

Connolly: "The other thing about how some of these conflicts between the judiciary and the president has a lot to do with who's in Congress. When Congress has the back of Lincoln in 1861, that makes a huge difference — Roosevelt is able to, and this is [Franklin Roosevelt] is able to... or even Andrew Jackson in 1832, he's able to win in his debates about Indian removal. Jefferson, 1807, again wins against the court relative to embargo on U.S. goods because he has Congress behind him. So in this instance, it’ll be very curious to see what happens when you have a Republican Congress, you have a Republican president, you will even have a predominantly Republican judiciary at the Supreme Court level, at least. And it’s going to, in very real terms I think, set the tone of how these conflicts between the White House and the courts play out."

Balogh: "But to go back to the founding to point out that there was a reason that the founders made the House of Representatives stand for election every two years. Because behind even the Congress itself is public opinion. And it remains to be seen how that public opinion influences Congress in real time over the next six months."

This segment aired on February 17, 2017.

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