Vermont Public is independent, community-supported media, serving Vermont with trusted, relevant and essential information. We share stories that bring people together, from every corner of our region. New to Vermont Public? Start here.

© 2024 Vermont Public | 365 Troy Ave. Colchester, VT 05446

Public Files:

For assistance accessing our public files, please contact or call 802-655-9451.
Play Live Radio
Next Up:
0:00 0:00
Available On Air Stations

Explore our coverage of government and politics.

Henningsen: Bad Judgement

Portrait by Alonzo Chappel
AP Photo
Chief Justice John Marshall headed the U.S. Supreme Court from 1801 to 1835. He was also Thomas Jefferson’s cousin and judicial nemesis. ";

President Trump made a mistake going after Chief Justice John Roberts in a recent Twitter storm. When the president denounced a member of the Ninth Circuit as an “Obama judge”, Roberts defended the ideal of an independent judiciary – saying that regardless of who appointed them, judges try their best to administer equal justice under the law. It was a mild enough reproof and, many would argue, long overdue. Roberts had been conspicuously silent in the face of earlier Trump rants against the judiciary. But perhaps, as the head of the third co-equal branch our federal government, Roberts finally decided that his position obligated him to respond.

But then the president, who describes himself as a “counter-puncher”, chose to intensify his denunciations of the Ninth Circuit, so-called Obama judges, and Roberts himself. This was the mistake – because presidents who pick fights with the Supreme Court usually lose.

Thomas Jefferson battled with Chief Justice John Marshall, who was also his cousin, and came up short every time. Jefferson and his successors favored limiting federal power and appointed like-minded justices, only to find the silver-tongued Marshall repeatedly seducing them into joining majority opinions strengthening national government.

The most famous confrontation came during the New Deal, when a conservative Court majority regularly invalidated Franklin Roosevelt’s major programs. Having won two consecutive terms with stunning majorities, FDR believed the Court was impeding the will of the people. He introduced a plan to pack the Court by adding a new justice for every sitting justice over age 70.

He didn’t, however, reckon with a Congress distrustful of such extensive use of Presidential power. Not only was his court-packing plan defeated, but from that moment on Roosevelt had significant difficulty moving any domestic legislation through a Congress he had previously controlled easily.

A notable exception is Mr. Trump’s hero, Andrew Jackson, who famously refused to enforce a Court decision protecting Cherokee Indians from being forcibly removed from their ancestral lands.

Mr. Trump may believe that he can emulate Jackson’s behavior, but executive power ends with the nomination of judges. After that, Chief Justice Roberts and his colleagues on the federal bench have lifetime appointments, and history, on their side.

Vic Henningsen is a teacher and historian.
Latest Stories