Does Trump have a right to expect ‘his’ judges to side with him?

President Trump angrily returned from his visit to the Supreme Court after hearing firsthand how the birthright citizenship argument was going. He immediately took to Truth Social to lambast the members of the court — especially his own nominees. 

In the president’s mind, his cajoling tactic apparently hadn’t worked. He seemingly wouldn’t gain the votes of two of his own nominees, Justices Neil Gorsuch and Amy Coney Barrett, nor had he intimiadated them with his presence. Trump’s unambiguous expectation was (and apparently always is) that if he names a judge to a court, especially the Supreme Court, that judge must vote with him — especially when he or she undoubtedly knows how important that vote is to him, such as on tariffs or birthright citizenship.  

Indeed, after the birthright citizenship argument, Trump publicly stated that the judges and justices appointed by Democrats could be better counted as “loyal” to the president who named them — accordingly the reason for his anger at the apparent disloyalty by his appointees. More directly, as The New York Times and Newsweek reported, he called his purportedly disloyal justices “unpatriotic,” “fools and lapdogs” and an “embarrassment to their families.”

Unquestionably, any president of either party who nominates a judge or justice largely expects that his nominee will conform to his views. That’s probably the way it ought to be. But should a president expect fealty from his judicial nominees?  

Trump, as is typical, takes the issue up a notch. He has made clear to his nominees that if they don’t side with him, he considers it an act of disloyalty and will unequivocally make their disloyalty public.

Still, it’s one thing for a president to berate (and even fire) a Cabinet secretary or high-ranking administration figure for having demonstrated disloyalty through disagreement or disobedience. It’s quite another to publicly debase judges or justices over court cases.

Indeed, do we really want a judicial nominee to be so loyal to the president nominating them that they will rule with him or her on every case? And if Trump can pull that off, and a Republican-held Senate votes the president’s nominee in, we can count on the next Democratic president and a Democratic Senate doing exactly the same thing. So much for an independent judicial branch of government! 

Presidents have perfect right to want — even to expect — their judicial nominees to see things their way on legal and policy matters. But they have no right to a guarantee.

And, maybe, just maybe, votes by the president’s nominees on birthright citizenship (and the previous decision on tariffs) adverse to the president’s wishes is exactly what the nation needs to prove that, fortunately, we do have an independent judiciary after all.

Joel Cohen, a former state and federal prosecutor, practices white-collar criminal defense law at Ruskin, Moscou and Faltischek PC. He is the author of “Blindfolds Off: Judges on How They Decide” and teaches at Fordham and Cardozo Law Schools.

Douglas Nadjari is a partner at Ruskin Moscou Faltischek P.C. and a member of the firm’s health law, white-collar crime and crisis management departments. He is a former state prosecutor and teaches at Tulane Law School.

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