Local view: A president critical of the courts is hardly new

The nomination of Judge Neil Gorsuch to the U.S. Supreme Court occasioned political controversy from both the left and right. Those who fear another conservative justice on the court are alarmed over the assumed threats a newly invigorated conservative majority would pose to a liberal agenda. Meanwhile, conservatives harbor possibly illusory hopes of what such a majority might accomplish.
In addition, the judge's reported remarks on the president's tweets impugning the integrity of the appeals courts in particular and the judicial system in general generated comment from both the left and right. Some even argue the judge's comments were political positioning to demonstrate his independence from the president should he be confirmed. Several observations can be made about the supposed uniqueness of the current situation. First, several strong presidents made disparaging remarks about the courts, including Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt. Indeed, both Lincoln and Jackson pointedly ignored Supreme Court decisions they disagreed with, and Roosevelt famously threatened to "pack" the court to override its conservative decisions. So there is nothing new in expressing presidential frustration over the courts. Further, the politicization of the courts also is nothing new. During times when the normal political processes seemed inadequate, the courts were turned to in an attempt to resolve otherwise seemingly irreconcilable views. Examples include slavery in the 1850s, state reapportionment and civil rights during the 1960s, and abortion rights in the 1970s. In failing to solve the issues at stake, the legislative bodies thrust the court into the political thicket. At least twice in the history of the Supreme Court, in the Dred Scott decision in 1857 and in numerous cases during the early New Deal, the courts stepped in with disastrous results that left them in political and institutional shadows during the very times their participation was most needed. As a result, there frequently is reluctance by the Supreme Court to enter into specifically partisan politics, a possible explanation of the seemingly inexplicable vote of Chief Justice John Roberts in the Obamacare case. So why do we continue to burden the courts with decisions that citizens and legislatures cannot make? At least two explanations can be advanced. First, the increasing polarization of politics makes any meaningful legislative advance difficult, whichever side is in control. Cabinet nominations and many judicial appointments used to be routine, but now each is treated as grounds for dispute. Senate debate rules have been changed several times by the party in power to achieve its ends with the resulting precedent set that whoever controls at the moment by even one vote can change the rules to suit the case. The deliberative process of the Senate has been abandoned in a wave of partisanship. Two "big tent" political parties have become much narrower demographically and ideologically, so compromise itself has become repugnant to them. The reasons for this are too complex to discuss here, but the recent election results, viewed by county, make apparent the sharpness of the division. Second, and causal to the first, is the disregard and disrespect for law from both sides. Agitation for change in a law has a long and respected tradition, but disrespect and contempt for law threatens the very basis of a civil society. Whether abolitionists in the 19th century or abortion opponents today, radicals - most zealous when least informed - deride the rule of law and suggest a "higher" law is involved. This is nothing but arrogance since they set themselves up as judge of the supposed righteousness of their cause with violent and disastrous results. This is and always has been a nation and society built upon law. Without respect for law and process, a wind will blow across this land against the force of which none will be able to stand. We have a process for resolving issues and a Constitution that sustains it. The question is becoming whether we still have the wisdom to use it.   J. Craig Scherf of Duluth researches and writes regularly for the publications of historical societies and is secretary of the Friends of the Superior Public Library.The nomination of Judge Neil Gorsuch to the U.S. Supreme Court occasioned political controversy from both the left and right. Those who fear another conservative justice on the court are alarmed over the assumed threats a newly invigorated conservative majority would pose to a liberal agenda. Meanwhile, conservatives harbor possibly illusory hopes of what such a majority might accomplish.
In addition, the judge's reported remarks on the president's tweets impugning the integrity of the appeals courts in particular and the judicial system in general generated comment from both the left and right. Some even argue the judge's comments were political positioning to demonstrate his independence from the president should he be confirmed.Several observations can be made about the supposed uniqueness of the current situation.First, several strong presidents made disparaging remarks about the courts, including Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt. Indeed, both Lincoln and Jackson pointedly ignored Supreme Court decisions they disagreed with, and Roosevelt famously threatened to "pack" the court to override its conservative decisions. So there is nothing new in expressing presidential frustration over the courts.Further, the politicization of the courts also is nothing new. During times when the normal political processes seemed inadequate, the courts were turned to in an attempt to resolve otherwise seemingly irreconcilable views. Examples include slavery in the 1850s, state reapportionment and civil rights during the 1960s, and abortion rights in the 1970s. In failing to solve the issues at stake, the legislative bodies thrust the court into the political thicket.At least twice in the history of the Supreme Court, in the Dred Scott decision in 1857 and in numerous cases during the early New Deal, the courts stepped in with disastrous results that left them in political and institutional shadows during the very times their participation was most needed. As a result, there frequently is reluctance by the Supreme Court to enter into specifically partisan politics, a possible explanation of the seemingly inexplicable vote of Chief Justice John Roberts in the Obamacare case.So why do we continue to burden the courts with decisions that citizens and legislatures cannot make? At least two explanations can be advanced.First, the increasing polarization of politics makes any meaningful legislative advance difficult, whichever side is in control. Cabinet nominations and many judicial appointments used to be routine, but now each is treated as grounds for dispute. Senate debate rules have been changed several times by the party in power to achieve its ends with the resulting precedent set that whoever controls at the moment by even one vote can change the rules to suit the case. The deliberative process of the Senate has been abandoned in a wave of partisanship. Two "big tent" political parties have become much narrower demographically and ideologically, so compromise itself has become repugnant to them. The reasons for this are too complex to discuss here, but the recent election results, viewed by county, make apparent the sharpness of the division.Second, and causal to the first, is the disregard and disrespect for law from both sides. Agitation for change in a law has a long and respected tradition, but disrespect and contempt for law threatens the very basis of a civil society.Whether abolitionists in the 19th century or abortion opponents today, radicals - most zealous when least informed - deride the rule of law and suggest a "higher" law is involved. This is nothing but arrogance since they set themselves up as judge of the supposed righteousness of their cause with violent and disastrous results.This is and always has been a nation and society built upon law. Without respect for law and process, a wind will blow across this land against the force of which none will be able to stand. We have a process for resolving issues and a Constitution that sustains it. The question is becoming whether we still have the wisdom to use it. J. Craig Scherf of Duluth researches and writes regularly for the publications of historical societies and is secretary of the Friends of the Superior Public Library.