Judicial Supremacy

 Back when I was starting law school—during the middle-to-end of the Biden administration—the trendy heterodox left-wing take on the law was to oppose judicial review. 

This had all the appeal at the time of coming as a form of sacrilege to young liberal law students—and still more to people who went to law school in their thirties, like me—Millennials who had grown up associating the Court with vindications of individual rights and social progress, like the Obergefell decision. 

Left-wing law professors could wag their fingers at us and say that such a view of the court was historically naïve. They could point out that the period stretching from the Warren Court to Kennedy's majority opinion in the same sex marriage case was the exception, rather than the rule. More often—the Court had been a reactionary force in American politics (viz. Dred Scott, the Civil Rights cases, the income tax case, the early test cases striking down New Deal legislation, etc.)

And coming as this argument did around 2022 to 2023—it found a shellshocked liberal law student audience suddenly ready to believe it. We had just seen Dobbs. We had just seen SFFA v. Harvard. We had just seen how Republican states seemed privileged to halt every Biden administration initiative by nationwide injunction—virtually overnight, as soon as it was announced.

 The timing was therefore right for us to shed our childhood belief in the independence of the Court—the idealistic view of SCOTUS as the remedy of last resort for all violations of individual and civil rights. 

But then came the second Trump administration. The new White House was announcing new, blatantly unconstitutional executive orders—flying in the face of existing contract rights, statute, standing precedent, and well-settled matters of constitutional interpretation—whether of birthright citizenship, impoundment, the spending power, for-cause removal restrictions, etc.—seemingly by the hour. All that stood between us and these policies were a handful of short-term district court injunctions. 

It suddenly seemed very important that we uphold the principle of judicial review. Otherwise, it wasn't clear what—apart from these court injunctions—was to prevent any person in the country from being abducted on the administration's orders and sent on a plane to a forever-prison in El Salvador. If it wasn't for the Supreme Court—how many more innocent people would have suffered the same fate? 

It was suddenly quite vital that courts be empowered to strike down unconstitutional acts from the political branches—since, with a supine Congress and an increasingly autocratic executive—if they didn't save us; who would? 

All the left-wing law professors who had been talking a few years earlier about how we don't need judicial review anymore suddenly tucked this argument away and went rather quiet. 

Whereas—predictably—now it was the MAGA conservatives and their apologists in the academy (Adrian Vermeule, e.g.—a little pencil-necked fascist over at Harvard, who is busy positioning himself to be the Carl Schmitt of the emerging Trump Reich) who were suddenly decrying "rule by injunction," the interference of "unelected" judges, the "defiance" of district court judges, who were now accused of being the real source of the "constitutional crisis" set off by Trump's policies. And so forth. 

 For a moment or two—conservatives hated judges; and liberals loved them again. 

But now—the tide may be turning yet again (as Ezra Klein points out in his latest podcast episode). The Supreme Court—after acting in March to slow the wheels of one or two of the administration's most egregiously vile deportation policies—suddenly started greenlighting Trump's abductions again. Because they have approved of third country removals without due process—five men are languishing right now in indefinite detention in the African country of Eswatini. 

These men may have had criminal convictions in the United States—but they served their time. Their further incarceration in Eswatini is based on no charge or trial or process of law whatsoever. In short, they have been deprived of the most basic civil rights—at the hands of a U.S. government that is ostensibly bound by the Bill of Rights. And the Supreme Court has let the administration get away with! Perhaps because it finds these men—some of whom did commit serious crimes—unsympathetic? 

So much for the law being dispensed without fear or favor, then. The Court—rightly so—prevented more people from being summarily deported to the CECOT dungeon in El Salvador, back in March. But—they have since let five men from Southeast Asia, Yemen, Cuba, and Jamaica languish in a very similar dungeon in Africa, under a very similar policy. Why? Because they didn't like these five men as much? 

Oh, for all, the hypocrisy, falsity, and callousness of the law, to quote Hugh MacDiarmid...

Would that this were the only recent travesty to come down to us from the high court. But it is not.

Since issuing its third country deportations emergency order, the Court has decided a plenitude of its other cases by means of the shadow docket—issuing short, unsigned orders—with no accompanying legal reasoning—which nonetheless bear drastic consequences—enabling the White House to go forward with mass-firing federal employees, dismissing independent heads of agencies without cause, impounding duly-appropriated Congressional funds, and rendering hundreds of thousands of people newly vulnerable to deportation.

One district judge, for instance, still thought—silly him—that the administration's decision to impound Congressionally-appropriated NIH grant funds on blatantly discriminatory grounds—banning grants merely because they addressed issues facing racial and sexual minorities—violated the APA. He paused the administration's order. 

But the Supreme Court reversed him. 

Not only that, but two of the Justices—Gorsuch and Kavanaugh—then vilified him cruelly from the high bench—accusing him of "defying" their previous orders. (Plainly, they had been reading Adrian Vermeule's latest in the New York Times op-ed page. They had learned their lessons well from the MAGA legal movement's new Carl Schmitt.) 

What they meant by "defiance" in this case was that the district court judge had failed to apply the reasoning—as they saw it—of one of their other unsigned orders in a different case on the shadow docket. Of course—what that reasoning was, was never explained—since there was no reasoning given in the unsigned emergency docket opinion. So how lower court justices are supposed to reason from these short, unsigned opinions by analogy to different cases with different facts was not clear. 

Nor had it ever before been established that emergency docket interim orders are binding precedent—particularly when they seem to overturn or conflict with existing Supreme Court precedent (such as longstanding case law saying you can in fact bring APA challenges in impoundment cases), and yet don't overrule these precedents explicitly. 

No matter—the district court judge was not only to be overruled, but to be publicly attacked and shamed and smeared in an utterly unnecessary concurring opinion from two sitting Supreme Court justices. 

The shade of Adrian Vermeule was hovering over this concurrence and cackling to himself. I'm sure he gloated when he read it. 

Then—perhaps feeling he had been a bit too ungentlemanly—Brett Kavanaugh decided to come down from his throne and make nice with the district court judges. Speaking at a judicial conference last week, he told his colleagues in the lower benches that he understood they had a hard job. This is what made it so important that judges remain scrupulously nonpartisan, he said. "We're modeling behavior for everyone," he reportedly said—"adding [as the New York Times paraphrases] that that made civility and neutrality especially important[.]"

I'm reminded of something V.L. Parrington writes in his Main Currents in American Thought—upon quoting a 19th century Whig writer who—in praise of a judiciary that had unerringly sided with capital in striking down popular legislation—claimed: "In a higher sense, [judges] are not representatives of the community [...] but of justice and of God. . . . They are in fact more immediately servants of God than any other men [...] because expediency, departure from law or from the constitution, is for them in no circumstance a thing to be conceived of."

As Parrington archly comments on the passage: "Mark Twain, it would seem, was not the only humorist of the Gilded Age."

Brett Kavanaugh too—it would seem—has decided to join our 19th century Whig apologist in the annals of the great American comedians. 

Of course—the Trump administration claims to have a "democratic mandate" for everything they are doing—because they won a single national election. So too—they can (and do) accuse district court judges who try to stop them of being "unelected" enemies of the people. And the Supreme Court—when it supinely permits Trump to trample all over the Constitution—can claim that they are merely showing "judicial deference" and "humility" to the political branches. 

But what this ignores is that both Trump and the Supreme Court are eviscerating before our eyes the democratic will of the majority as reflected in the laws of Congress. Trump, after all, isn't the only official who won an election. What about the members of the House and Senate who were entrusted with their offices by their constituents? What about the statutes they enacted through the democratic process—the laws creating civil service protections for federal employees; establishing for-cause removal restrictions for heads of independent agencies; prohibiting impoundment of appropriated funds; etc.? 

These laws were all passed with a democratic mandate—but Trump and a set of unelected philosopher-kings on the nation's highest bench are conspiring to set them at nought. 

This has always been the crux of the left-wing critique of judicial review: namely, that it transforms the judiciary into a kind of super-legislature—exercising a final power of veto (as if veto powers resting in two different chambers of Congress and the White House were not already veto-points enough) over all duly-enacted statutes. 

The experience of the second Trump administration so far—then—shouldn't so much make us second-guess the left-wing critique of judicial review as to double down on it. The district court judges who have enjoined Trump policies, after all, have not been trying to strike down Congressional statutes. Rather, they have been trying to enforce Congressional statutes against the executive's will. And this is exactly what judges should be doing—applying rather than creating the law; applying Congress's statutes rather than amending them or legislating from the bench. 

But the Supreme Court has been doing the opposite—they have been helping Trump to nullify statutes. In so doing, they are acting as super-legislators—with the power to amend or create alternative statutes as their reason or opinion commends. 

This is what Parrington worried about so much in the Federalist (and later, Whig) program of using the judiciary as a curb to popular legislation: namely, that it was essentially a scheme to defeat democracy; to substitute the will of an aristocracy for that of the public. 

Indeed, Tocqueville observes in his Democracy in America, that the judiciary—which our Constitutional scheme post–Marbury v. Madison endows with the unusual, if not unprecedented, power of striking down national legislation—a power enjoyed by few other courts in the developed world—is a strangely and incongruously aristocratic vestige in an otherwise democratic order. 

And if some liberals are inclined to secretly admire that fact—imagining that a select group of educated elites could serve as a check on the worst impulses of the mob—just ask yourselves: just how much did the aristocracy protect the rights of individuals or minorities in the ancien régime—with its tortures on the rack and its breakings upon the wheel?  

No, it is not a good thing to have a secret aristocracy with the power to overturn the will of our democracy at its pleasure—yet that is what the American system has created. 

Parrington quotes with pleasure from Brooks Adams on this subject—so I decided to read Adams's Theory of Social Revolutions myself. And indeed, this short book (really, more of a pamphlet) is remarkably prescient in its warnings against a politicized judiciary. 

Adams's chief point is that the American judiciary's role as a super-legislature has inevitably made it a political institution. From the dawn of our republic—therefore—rival factions have contended for control of the body; and, as soon as they have gained enough seats on the court—it has reliably issued rulings to serve the interests of party. 

The Supreme Court's politicization, then, may be a big, but it is not a new, problem. The Court has always known its paymasters; and been willing to serve them loyally. 

The fact that the Supreme Court has so often overturned democratically-enacted legislation, because it has been captured by conservative factions, has given rise to periodic calls for a more "democratic" judiciary—in other words, more direct majoritarian control of judicial decision-making. 

Adams points in his own time to emerging demands for the elective "recall" of judges. 

And in our own political moment—the Trump team briefly floated the idea of using their control of Congress to impeach district judges who ruled against them. (Though, once the Supreme Court started greenlighting the administration's every abuse of power—we strangely stopped hearing so much about this.)

But Adams sees this majoritarian highjacking of the judicial function as a cure worse than the disease—or, rather, as a mere extension of the disease. The problem with the American courts, after all, is that they have been politicized—they have become the creatures and tools of faction. To make them overtly and avowedly political—elected representatives who rule on behalf of the party that put them in power—would, then, only make this problem worse. 

The real goal—as Adams sees it—should be to retain lifetime appointments and fixed salaries for the justices, to ensure their independence—but to constrain them to the role of applying rather than making the law. And this can only be achieved once the bench no longer has the constitutional power to veto or nullify national legislation. It must be deprived of its ability to act as a super-legislature. (And if this sounds like a radical remedy—Adams reminded us more than a century ago—it is actually no different from how the Supreme Court operates in Canada and most other peer nations.)

But would this mean that Congress could enact oppressive or unconstitutional legislation with impunity? There are at least more safeguards there (two chambers and a presidential veto power), and less potential for abuse, than there are if the President and the Supreme Court are to be permitted to enact oppressive and unconstitutional legislation—particularly when they are not formally supposed to enjoy legislative powers at all. 

Parrington writes admiringly of Brooks Adams as a "rebel" for propounding such views: a rebel against the concentrated power of capital (which had effectively hijacked the courts at the time he was writing, and which had secured such victories for business against the popular majority as the decision striking down the income tax). And perhaps Adams was a rebel. But if so—he was a conservative rebel. He was the sort of enlightened conservative who wanted things to change so that things could stay the same. 

He argued above all that—if the United States wanted to preserve social order—then it needed to prove its legal system was willing to adapt. 

Whereas if the judiciary keeps on striking down—time and again—the will of the public as reflected in statute—it was only a matter of time before the judiciary as a whole would forfeit its credibility and become a fundamentally illegitimate institution in the eyes of the majority.