In March 1801, a few hours before his term was over, America’s second president, John Adams, tried to pack the country’s courts by appointing scores of new judges who would be favorable to his Federalist Party. His rival and successor Thomas Jefferson, was enraged. He ordered his new secretary of state, John Madison, not to deliver the letters of appointment to those judges who hadn’t received them yet. One of them was William Marbury of Maryland, who petitioned the Supreme Court to force Madison’s hand. His petition was denied, but not before Chief Justice John Marshall crafted one of the most daring and influential verdicts in modern history, in which he laid the groundwork for judicial review of executive actions and congressional legislation. Ever since, conservatives and right-wingers in the United States - and in Israel - have been fighting Marshall’s enduring edict.
Given that Donald Trump has only a vague idea, if at all, of the importance of Australia or the significance, dead or alive, of Frederick Douglass, it’s highly doubtful that he’s ever heard of Marbury vs. Madison, the landmark case that is taught in the first year of constitutional law in law schools throughout the land. Trump probably hasn’t heard of Montesquieu and the separation of powers, either. Judging by his harsh initial reaction to the temporary restraining order given by Federal Judge James Robart in Seattle on Friday against his executive order on immigration, Trump was probably taken aback by the very idea that a judge can overturn a decision of the commander in chief. He was doubly dumbfounded on Sunday, when the Ninth Circuit Court of Appeals refused a Department of Justice petition to overturn Robart’s decision. You can just imagine him turning to his aides in the White House demanding to know if this has ever happened before or whether they think it’s personal.
Trump reacted with characteristic bluster, blaming the “terrible” and “ridiculous” decision, rendered by a “so-called judge” that will endanger America and let “bad and dangerous people” into the country. On Sunday afternoon he went further, saying that Robarts had placed America “in peril” and that “if something bad happens, blame him and the court system.” Though widely condemned by horrified Democrats and Republicans, in this case, at least, Trump can cite an illustrious precedent: Jefferson himself was unhappy with Marshall’s decision to designate his court as the supreme arbitrator and protector of the Constitution. In a strongly worded protest that sounds as if it was taken directly from the ongoing campaign of Jewish settlers and right-wingers to curtail the authority of the Israeli Supreme Court, Jefferson said that after Marbury, America would be beholden to “despotism of the oligarchy.”
Thus, the developing confrontation between Trump and the judiciary can be viewed through three parallel prisms. First, as one more round in the centuries-old jostling for power between the three branches of government; second, as another worrying manifestation, apparent in Benjamin Netanyahu’s Israel for the past several years, of an authoritarian, anti-democratic right-wing power grab that is aimed at weakening liberal pockets of resistance; and third, as another arena in which Trump’s undisciplined and impulsive personality could very well set the tone. After all, if things don’t work out in his favor, Trump is capable of turning a confrontation into open conflict, disagreement into a complete breakdown and an argument over substance into a bitter personal war. As someone who can’t tolerate even the slightest of slights, the judges’ insistence on standing for their independent authority could bring out the worst and most repulsive in the new president.
The battle is far from over, of course. The temporary restraining order could very well be overturned when the Ninth Circuit Court convenes on Monday night or Tuesday morning, or in separate petitions to the Supreme Court that might be filed before or after. Nonetheless, Robart’s decision was like a shot in the arm for beleaguered Democrats, liberals and the so-called "Resistance," which continues to demonstrate in the streets of American cities. It created the impression - or the illusion - that they are not alone in their opposition to Trump. It sparked hopes that the bedlam unleashed by Trump since his inauguration could still be reversed, or at least restrained.
Israel’s experience in recent years should sound a note of caution. By yielding to the courts, the political and public opposition sheds its resolve and empties its own batteries. In Israel, the only criteria by which politicians are judged today are whether or not their misdeeds are indictable. Everything else is deemed to be smelly, but kosher. All of Netanyahu’s affairs that are currently under investigation - taking lavish gifts from a rich Hollywood producer, conniving behind the scenes with a powerful publisher, interfering suspiciously in a lucrative submarine deal - stink to high heaven and in many countries would lead to a public outcry that would imperil his seat. The same is true of Israeli occupation and settlement activities in the West Bank - as long as the courts do not interfere, the settlers can do as their heart desires. Israelis have long given up on public pressure or political scrutiny to rein in their leaders. If the judges don’t do the job, most Israelis tell themselves, then nobody will. It is a responsibility too Herculean even for the most resilient of jurists, but even their small accomplishments enrage the ruling right wing and invite measures to curtail their authority further.
Trump’s clash with the judges might make life a bit more difficult for his Supreme Court nominee, Neil Gorsuch, who will be caught between a rock and a hard place when asked to comment on Trump’s remark about a “so-called” judge." It will make Democrats fight harder to block the nomination. Together with Trump’s outrageous comparison between the U.S. and Russia - both are “killers,” he told Fox News - life is also getting more difficult for moderate Republicans from red states and districts, whose voters are getting edgy about the erratic and often offensive behavior of their president. It goes without saying, of course, that if Obama had said anything similar the sky would have fallen etc.
But whatever modest gains and small victories are achieved, Trump is still president, with the enormous powers and substantial authorities vested in his office. Congressional Republicans may be unhappy with his statements and behavior, but that won’t deter them, as long as Trump fulfills their greater ideological goals in areas such as immigration, taxation, abortions, fighting radical Islam, confronting nuclear Iran and hugging Israel and Netanyahu. In the end, judges won’t save America from itself, nor will they prevent Trump from implementing his ban on immigration from certain Muslim countries.
With a little change here and a tiny amendment there, a persevering administration can wear out the judges and find the formula that will eventually pass their test. That has been the Israeli experience throughout its steady descent down a slippery, anti-democratic slope. His right-wing Israeli friends can teach Trump the appropriate thing to say when confronted with the high hopes, inevitably dashed, of his left-wing opponents: The dogs bark, but the caravan moves on.
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