Since taking office nearly nine months ago, President Donald Trump has signed a flurry of executive orders that have kept the legal profession working overtime. By early September, 202 of the orders had spawned at least 395 court challenges.
Twenty-three of the cases were fast-tracked to the Supreme Court in hopes of emergency action. One of the latest to be bumped up is an Aug. 29 U.S. Court of Appeals ruling that rejected the president’s claim of an emergency to impose trade tariffs.
This “litany of litigation,” as one analyst characterizes the cascade of charges and countercharges, frustrates many Americans. Elected leaders from both parties are criticizing judges and rulings. Meanwhile, some judges, normally reticent, are weighing in.
Much of the frustration comes by historic design. The nearly 240-year-old constitutional principles of separation of powers and checks and balances remain highly relevant today – that is, if consistently applied. According to Michael Kryzanek, professor emeritus of political science at Bridgewater State University, these tenets are “a means of slowing the process of governmental decision-making so that the result is based on compromise, consensus and bipartisan cooperation.”
Too often, issues that could be resolved in elections or by legislators end up in the courts, burdening the judicial system and sometimes eroding trust in this powerful branch. According to a Pew Research Center report in August, fewer than half of Americans hold a favorable view of the Supreme Court, down from 70% in 2020. Only 14% say the nine justices are doing an excellent or good job of keeping politics out of decision-making.
Many judges have pushed back on these claims. In 2018, President Trump lashed out at an “Obama judge” for a decision against an administration plan to restrict asylum applications. That sparked Chief Justice John Roberts to respond.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he stated categorically. The role of the courts, he said, is “to interpret the … laws of the United States and ensure that the political branches act within them.”
A few weeks ago, Justice Brett Kavanaugh told a judicial conference that “It’s a difficult job that each of us has.” He praised “the trial judges who operate alone … on the front lines of American justice.”
The challenge now, as in years past, is to honor and elevate the distinct, constitutionally-mandated role of the judiciary. “Real change, lasting change, effective change,” according to Dr. Kryzanek, comes from “vital interaction between the executive and legislative branches,” rather than continually calling on the judiciary “to manage a constant flow of partisan disputes.”
