Are Donald Trump’s remarks about the judges handling the challenges to his refugee order a threat to an independent judiciary? Yes, they are — but that threat is just a visible symptom of a larger problem not of Trump’s making.
The Rule of Law, Not a Rule of Lawyers
The rule of written law is one of the six pillars of the American republic. One is democracy: We involve the greatest number of people in making government decisions, rather than trust in an elite of “experts.”
The second is free markets: We involve the greatest number of people in making economic decisions, rather than trust in central planners.
The third is federalism: We put government decisions closer to the people in order to involve a more diverse set of decision-makers who can experiment with different paths for different communities’ needs.
The fourth is tradition: We invoke the wisdom of the larger sample of multiple generations by trial and error on matters of common human experience rather than rely on the more limited number of people alive at a particular time.
The fifth, which ties together democracy, federalism, and tradition, is deliberation: We have a republic, not a pure democracy, so that government decisions are not the process of hasty panics but are openly debated and resolved with support that is deep, geographically wide, and enduring over a series of elections, so that continuing to enforce today’s laws tomorrow has legitimacy.
And sixth, without which the other five are powerless, we have the stable rule of written law so that the democratically enacted decisions reduced to written law by the representatives of the people with due deliberation are honored until overturned by the same process and not easily discarded by a narrow professional elite.
This is not the system designed by Washington, or Jefferson, or Adams, or Hamilton, or Madison, or Franklin, or any of the other Founding Fathers; it’s the system designed by deliberate compromises among all of them, ratified by the people of their day, and changed repeatedly since by the people when the need for changes became apparent. Taken together, the American system is designed to steer a middle path between the self-interested and parochial pretensions of an aristocratic or oligarchic elite and the passions and self-interests of a populist mob. It is also designed to steer a middle path between the ossified rule of the past and the fickle moods of the present. The people remain sovereign and can change any law they like — if they act in large enough numbers over a broad enough area across a sustained period of time.
We do not have an independent judiciary because lawyers and judges are wiser than the rest of us, nor do we have one because decisions reached without the input of the people are more legitimate or more just than decisions made by the people. We have an independent judiciary because the rule of written law embodies the collected wisdom of democracy, deliberation, federalism, and tradition, and is relied upon by free markets. We keep politicians accountable to the voters so that they can say, “This is my decision; vote me out if you disagree.” We keep judges independent so that they can say, “This is not my decision; this is the way the law was written, and it is the same law for everyone.” When decisions are not dictated by how the law has already been written and enacted, those decisions should not be made by independent judges but by accountable politicians.
Working the Refs
President Trump’s executive order on refugees was temporarily halted by a federal judge in Seattle without much in the way of legal reasoning, and it will shortly be ruled on again by a three-judge panel of the Ninth Circuit, one of whom is an Obama appointee, another a Carter appointee. If the rule of written law is the point of judicial independence, it shouldn’t matter who appointed the judges, since their independence should produce uniform results regardless of their political leanings. And if you believe this is the way courts actually work, then naturally it is outrageously improper for prominent political figures to harangue the courts in an effort to influence their decisions.
Trump has been doing a lot of haranguing. A sampling from Twitter:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
And criticism is far more toothless coming from Trump. Trump’s comments are likely to be a lot less effective than Obama’s in swaying the courts to his favor, because Obama was appealing to people whose good opinion the judges value, and Trump is not. Most federal judges don’t interact much with the kinds of people who voted for Trump, and they don’t fear alienating them. To the contrary, standing up to Trump will win you awards at the next bar association dinner. But standing against the abuse of Obama would have required genuine courage, because Obama had behind him the opinion of the majority of the legal professional and academic elite, and that’s far more important to judges than the opinions of the common folk. And that’s an even more alarming reality to contemplate, because rule by a professional elite lacks even the brute majoritarianism of rule by a mob.
The solemn duty of the federal courts — the reason we give them life tenure — is to interpret the law as originally written, without fear or favor or concern for outside political pressure. Politicians like Trump and Obama who seek to undermine that independence with public campaigns against the courts in pending litigation are acting improperly. Judge Gorsuch has told Democratic senators that comments like Trump’s are “disheartening” and “demoralizing,” and he’s right. But our system has freed the courts from any accountability for abusing their power and disregarding written law. They have too often invited contempt, and now they face a president who doesn’t understand why they shouldn’t receive it. That’s a tragedy for all of us.