Trump is stress testing the nation’s courts

With most of us on high alert over the American political system’s daily emergencies, a conversation with the chief justice of the Washington Supreme Court is akin to a quiet walk in the Hoh Rainforest. 

Debra Stephens also has concerns, but her faith in the rule of law, the Constitution and the American judicial system keeps her centered and hopeful. 

Like other judges, justices and legal experts I talked to, Stephens holds a more historical perspective of our government systems. As we move deeper into the second Trump administration, you may not be able to embrace her optimism that things will turn out OK, but the data support her perspective. So far, states and advocacy organizations suing the administration over its policies and executive orders are overwhelmingly winning in court. 

America’s court system may be the only thing standing between us and the collapse of our democracy. But can it withstand relentless political pressure, a president flouting norms, and the more mundane challenge of just making sure the gears of the judiciary keep turning and cases move efficiently through the legal system?

According to The New York Times and others tracking court cases against the Trump administration, nearly 200 judicial decisions so far have halted at least temporarily the president’s initiatives. People have already died or been deported or lost their jobs because of Trump’s policies and actions, but it could be worse if the nation’s court system wasn’t as sound.

Stephens worries about courts getting bogged down in toxic public debates about socially divisive issues. But another risk to judicial independence that she flags is considerably less sexy.

“The greatest threat to judicial independence is that courts are overburdened and under-resourced. The ability to just get through those dockets with a limited number of judges is a chronic problem,” she said. 

Just taking care of everyday work is more than the current Washington courts can handle. When a big case comes onto a district court calendar, like the McCleary decision on public school funding or an upcoming adjudication of water rights in Whatcom County, the whole county may need to rewrite its court calendar and move staff and other resources around. 

Stephens said the judicial system, which represents about 0.08% of the state general fund budget, needs more money, but that’s not the whole solution. She thinks the state needs to make a broader social assessment of what we’re asking courts to do. Some things, like addiction, family unification, mental health and income insecurity, might need to move out of the courts into a different system.

Will the system be overwhelmed?

Washington Attorney General Nick Brown agrees that an overburdened judiciary could be a threat to judicial independence because it could lead to instability.

But he’s more concerned about the pressure the Trump administration could put on the system by doing things like attacking judges or calling for their impeachment.

People who would make good judges are already deciding not to pursue that career path, because of the hyper-partisan atmosphere in which they would serve. The assassination in June of a Minnesota state lawmaker and her husband only underscored the risks and fear public officials must confront these days.

Like Stephens, Brown remains confident in the integrity of the judicial system and doesn’t think it will be overwhelmed even as President Trump is “flooding the zone” with executive actions.

“Our court system will be fine. They’ll make it work,” he said, noting that the judiciary appears to be operating efficiently and independently. 

“And we’re winning. It’s the second quarter of the game, but we’re winning on the scoreboard,” he added. 

It’s the “next quarter” that raises concerns for Brown, his fellow attorneys general across the nation and the citizens who are paying close attention. The attorneys general are working with the courts to keep the pressure on the executive branch to make sure they follow court directives. But no one knows what the future will bring, especially if Congress doesn’t do its job to check the president.

The role of everyday Americans

Retired UW law professor Hugh D. Spitzer said one key to maintaining judicial independence is in the hands of the American people. Everyone should educate themselves about the separation of powers and let their representatives in Congress know how important an independent judiciary is to them. He and others expressed concerns about the need for more civics education and encouraged people to take advantage of any opportunity they have to serve on a jury as a great way to learn how our courts work. 

“On balance, I’m also optimistic that it’s going to work out. But you have to be vigilant,” he said.

Like all the people I interviewed for this story, Spitzer had a nuanced opinion on whether electing or appointing judges was better for judicial independence. But they all agreed that both approaches include some political pressure on those who hold the gavel. Longer periods between elections help with independence, they also agreed. Spitzer added that public financing of judicial races is better than expecting judges to raise money for their campaigns. This seems pretty obvious.

We’ve seen the way judges appointed by Republican presidents, including Trump himself, are stopping some of the current president’s executive orders. This is judicial independence working well: with judges focusing on the law and the Constitution and ignoring political pressures.

Both the chief justice of the U.S. Supreme Court, John Roberts, who was appointed by President George W. Bush, and Justice Sonia Sotomayor, who was appointed by President Barack Obama, have spoken out recently about the need for judicial independence and have criticized the president’s statements to the contrary. 

“Judicial independence is crucial,” Roberts said at a May gathering of judges and lawyers in Buffalo, New York. He praised the constitutional concept of the three co-equal branches of government. “That innovation doesn’t work if the judiciary is not independent,” he said.

In a talk at the Georgetown Law School in March, Sotomayor agreed with Spitzer that educating the public about the importance of judicial independence.

“More than ever, we have to get up and explain and repeat and explain again why judicial independence is critical to everyone’s freedom,” Sotomayor said in response to a question about the role of courts in addressing growing challenges to the rule of law. “Once we lose our common norms, we’ve lost the rule of law completely. So it’s going back to figuring out what those are,” she added.

Justice Ketanji Brown Jackson, nominated by President Joe Biden, recently warned at a conference of judges and lawyers about the danger of attacking judges for doing their jobs, as Trump has done, although she did not name the president in her comments. 

Hints from history

Judge Ketu Shah, presiding judge of King County Superior Court, said this moment in U.S. history will pressure test the judicial branch, but he thinks the courts are up for the test. 

He’s been thinking a lot about an 1803 Supreme Court decision, Marbury v. Madison, that made the judicial system what it is today by establishing the right of the courts to rule on the constitutionality of actions by the other two branches of government. 

“The chief justice at the time was very worried about judicial independence but not wanting to offend the current president, Thomas Jefferson,” Shah said. That decision set up the independence of the judiciary, which was essential to keeping the fledgling American system moving in the right direction then and now. “The reason our government has been successful all of these years are the checks and balances between the different branches. We need to hold on to that.”

He drew from history again to talk about another concern. Because even judges are human beings, they will make mistakes (and have made some that many of us could list). The question is: Will they be able to fix them? Shah raises as an example of how mistakes by the judicial system can be fixed, the Dred Scott decision, or Dred Scott v. Sandford, when the U.S. Supreme Court decided in 1857 that slavery was OK. 

That decision, considered by many to be the worst ever from the Supreme Court, was overturned by the 13th and 14th amendments to the Constitution, which abolished slavery and declared all persons born in the United States to be U.S. citizens, with the same rights. In other words: birthright citizenship, which is currently being debated again in the courts. 

Shah said he thinks the courts are being serious and sober about their role right now, but like the others I interviewed, he’s worried about the tone of political debate affecting the courts and our system of government more generally.

“I wonder what will happen in the future if the amplified voices help people forget the importance of checks and balances,” he said.