There is an ongoing challenge in the United States that is infinitely more insidious than the ones President Donald Trump started about walls, bans and finance rules. It is the renewed challenge from the executive branch against the judiciary branch, claiming superiority of the former, the government, over the latter, the court system. This is nothing new. The same challenge represents itself generation after generation in America’s history, as well as in the history of all democracies that rely on the balance of constitutional powers and not just on the vote. Italy has already seen the Lega Nord, a party that once belonged to the government coalition, claim the supremacy of a generic “people,” its people, over the courts.*
In one of his bizarre tweets, Trump labeled Federal Judge James Robart a “so-called judge” for daring to issue a restraining order against the travel ban, which suspended travel from six Arabic countries and Iran, because the ban was legally and constitutionally doubtful. Trump also claimed that the trial against his scam university was allowed only because of the judge’s Mexican heritage. When Trump makes such statements, he jeopardizes the separation of powers that makes a democracy a nation founded on laws, not just on men or women.
Many of his predecessors from different political factions, such as Franklin Delano Roosevelt and Richard Nixon, attempted to do the same thing for very different reasons. They were stopped before they could cause irreparable damage to the checks and balances that have allowed an unruly, violent and multicultural nation such as the United States to survive for two centuries instead of collapsing under its many contradictions.
Fortunately, presidents and governments are temporary. Elections can provide different and, at times, even opposite results in the span of just a few years, depending on which way the wind is blowing. However, the whole structure of law and civil co-existence falls apart if the executive branch, the government, does not show respect for the independence of the judiciary (even when it makes mistakes) and if it fails to acknowledge the judiciary’s fundamental duty to enforce the law.
With the loutish shallowness of a reality show protagonist, Trump may not even realize what a historic threat his labeling a federal judge “so-called” represents. This sort of definition may be associated with a recently arrested suspect, a usurper. Trump has forgotten that this judge, nominated by George W. Bush, was vetted and confirmed by the Senate with a vote of 99 to 0.
Everyone who is subjected to an unfavorable court decision feels tempted to delegitimize the judiciary. If the person in question is a politician, every trial or investigation will inevitably be perceived as “politically motivated.” However, what Trump, in his quackish ignorance, does not grasp, preoccupied as he is merely with his wounded vanity, is that if a president, who is both head of state and of the government, questions a judge’s decision, nobody else will feel constrained by other “so-called” judges.
The law and its application become “so-called,” alleged and relative, until even the last institution that still enjoys a measure of the people’s respect crumbles to dust. As a result, democracy, which is supposed to be based on rules and not on the absolute will of a temporarily elected sovereign, inexorably turns into a “so-called democracy.”
*Translator’s note: “Lega Nord” translates into the Northern League.