Swollen beyond constitutional recognition, they distort the way elections are contested.
AS four newly Senate-approved federal appellate judges move into their chambers seven months after Neil Gorsuch joined the Supreme Court, they may seem to have vindicated conservatives who swallowed their qualms about Donald Trump last year out of a conviction that, whatever his flaws, he would save the judiciary.
Yet this “but the courts” defense of Mr. Trump says less about him than it does about the courts: namely, that their importance is swollen beyond constitutional recognition. If a branch of government that Alexander Hamilton dismissed as “the least dangerous” can overshadow every other concern about Mr. Trump, the branch is more dangerous than it was supposed to be. Originalists who believe these judges will help to tame judicial overreach should credit Mr. Trump for the appointments. But all should take notice of the fact that the “but the courts” argument reveals a judiciary of outsize importance.
Conservatives did not always hold the judiciary in such awe. Judge Robert Bork, whose nomination to the Supreme Court the Senate rejected three decades ago, became a martyr to the cause of originalism because he believed in the courts’ demotion in the constitutional scheme from the inflated role they had assumed under Chief Justice Earl Warren. Using the same reasoning, Mr. Bork also criticized conservative judges of earlier generations, like those who overruled economic reforms in the Progressive Era.
Now, however, as a constitutional matter, deference to the judiciary unites a broad coalition of right and left, which dispute how, not whether, the judiciary should exercise a far-reaching power to overrule the people’s elected representatives. Liberals have long argued in favor of an extensive understanding of individual rights, especially on issues such as privacy, a stance to which Mr. Bork’s judicial modesty was a correction. Originalism is a diverse movement that consists of both opponents and supporters of Mr. Trump’s election. Many of them still support a deferential judiciary, but growing numbers seek control of the courts to promote conservative ends.
The “but the courts” argument for voting for Mr. Trump percolated largely from grass-roots quarters, among religious conservatives in particular — where one would have expected the most hostility to Mr. Trump. Deflating the power of the judiciary might help to normalize our politics and help restore the primacy of considerations like policy and character in the choice of public officials.
Courts have removed wide areas of jurisdiction from the public’s authority, corroding the ethic of measured majority rule that James Madison described as “the vital principle of our free Constitution.” Elected officials have been willing participants eager to shed their responsibility to the courts despite the fact that the Constitution imbues them with ample authority to exercise it themselves. When President Barack Obama used executive authority to provide subsidies for health care that House Republicans said the Affordable Care Act did not authorize, they did not retaliate legislatively, as Madison’s Federalist 51 — the paper that based the separation of powers on each branch’s propensity to defend its own turf — would have predicted. Instead, they sued, essentially asking the judiciary to shelter them rather than sticking up for themselves. When they raised constitutional objections to Mr. Obama’s executive order on immigration, Representative Jim Clyburn, Democrat of South Carolina, dismissed them by disclaiming the authority that the Constitution had placed in his hands: “That’s not for Congress to decide, that’s why we have courts to make that decision.”
That is emphatically not why the framers thought we had courts. Madison wrote that allowing unelected judges the last word on constitutional questions “was never intended, and can never be proper” in a republic. Hamilton emphasized that the judiciary had no power of enforcement, only of judgment.
But Hamilton’s pseudonymous adversary Brutus, an opponent of the Constitution, understood the power of judgment in a republic. He observed that the Constitution gave judges the final word, without appeal, on constitutional questions to the Supreme Court, and asked the crucial question: How would officials with unaccountable power behave? His answer was that the justices of the Supreme Court would be “independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
A simple thought experiment illustrates the extent to which Brutus was right. Were it within the power of the president to deliver a majority in Congress, would conservatives set aside such other core principles in the executive as decorum, morality and economic freedom in order to attain control of the legislature? Such a victory would be transparently hollow because it would entail ceding principles to obtain power whose putative purpose is to enact those principles in the first place. Thomas Jefferson understood this. In 1792, a political adversary was contemplating running for the House of Representatives, where Jefferson was concerned real damage could be done. Consequently, Jefferson wrote his friend Madison, “I think nothing better could be done than to make him a judge.” The rival’s name was John Marshall.
What makes judges different today, so much so that “but the courts” conservatives were willing to forgo other important principles to attain the judiciary? Obtaining life tenure for your allies is only a worthwhile bargain if conservatives believe the courts are substantially more powerful in the long run than the elected branches are in the medium term. If that’s true, then something is constitutionally awry: Judges are affecting life in America more than elected officials. There are, of course, other reasons for thoughtful conservatives to have supported Mr. Trump. That so many were swayed by the “but the courts” defense alone despite their myriad concerns about Mr. Trump is compelling evidence that the judiciary has grown independent of heaven itself.