Trump’s Attacks on the Courts Are Downright Dangerous. Here’s Why.

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February 10, 2017

Among the things troubling us about @realDonaldTrump is that it has become quite clear that the President doesn’t really understand the role of the courts and how the three branches of government work as checks and balances on each other.

Lambda Legal has been defending the rights of LGBT people and everyone living with HIV in the courts for over 40 years. We know why fair and impartial courts matter.

Most elementary civics classes teach students these basic lessons about our democracy.

The Framers of the U.S. Constitution intentionally set up a three-branch, co-equal system of government. Each branch (the Executive, the Legislative, and the Judicial) has separate duties, and all have the ability to “check” each other so that one branch does not run away with all the power. Courts are an essential part of our democracy and provide a vital balance in our government, particularly when it comes to protecting individual rights.

It seems that President Trump could use a refresher.   

Actually, it’s these tweets that are dangerous and terrible. Calling a judge who was appointed by George W. Bush and confirmed with 99 votes in the Senate a “so-called judge” is an attempt to de-legitimize a ruling and the role of the courts more generally. This threatens judicial independence.

Judicial independence is the concept that the judiciary exists and acts without any undue influence from outside interests or other governmental branches (including late-night tweets from a sitting President.) Judicial independence is essential to maintaining fair and impartial courts. We need fair and impartial courts that make unbiased decisions based upon the facts and the laws relevant to each case and without outside influences.

Wrong. It is one of the top responsibilities of judges to call it when an executive order conflicts with the Constitution. Even the President must follow the law. When a presidential order ignores the Constitution, judges have a duty to strike it down.

The concept of judicial review — that “[i]t is emphatically the province and duty of the judicial department to say what the law is” — was defined by the Supreme Court case of Marbury v. Madison that upheld the power of federal courts to void government acts (like unlawful executive orders) that conflict with the Constitution.

Threats to judges over their decisions are a threat to everyone’s access to justice. When politicians or extremist organizations (like the National Organization for Marriage) make such threats, they are trying to weaken the courts and our system of checks and balances, thereby weakening everyone’s rights.

You see, LGBT people and other marginalized and vulnerable people often have their rights trampled on by executive and legislative actors. Courts are often the last resort to safeguard our rights and liberties, so it is imperative that the judicial system be accountable to the law and state and federal constitutions — not to politicians who side with powerful interests or their voting base. Courts must be free to uphold constitutional principles of equality without bowing to the will of the majority or the powerful.

Popularity is irrelevant. It is not the role of a judge to enforce the will of the President or uphold a law on the grounds that it was “popularly enacted.” It is a judge’s job to decide serious legal questions in accordance with the Constitution and legal precedent, regardless of politics. This is true when presidents have high approval ratings, and even when only 47% report they “approve” of a president’s performance. 

No. There's no conflict between responsible security policies and the rule of law. In fact, the opposite is true. A government that acts based on accountability to the law and real facts, not “alternative facts,” keeps us safe without sacrificing the freedom and equality that define who we are. Americans want strong courts that protect individual rights and equal justice against an unaccountable ruler.

Throughout our nation’s history, we have depended on the courts to preserve the rights of all citizens and the guarantee of equal protection of the laws. Cases like: Brown v. Board of Education, which set the precedent needed to abolish the legal framework of racial segregation; Loving v. Virginia, recognizing the fundamental right to marry the person of one’s choice, regardless of race; and Lawrence v. Texas, affirming the fundamental liberty right to private sexual intimacy, all overturned state laws that infringed on constitutional guaranties.

Courts don’t always get it right. There will always be people that strongly disagree with the outcome of a particular decision. We disagree with court opinions pretty frequently. So we appeal, we fight on, but we don’t threaten not to follow it. That way threatens our entire civil government — particularly if you’re the President. #RuleOfLaw

Oh, and as for that #EasyD tweet, it looks like LGBT Twitter community cleared that up for you.