Conservatives

The Way Out of Our Judicial Impasse Is Through It


- June 5th, 2019
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For more than half a century, as leftist judges have preempted or nullified our efforts to govern ourselves, conservatives have staked much on the appointment of judges who would follow the law rather than legislating or administering from the bench. And indeed, the number of such judges has been growing for a generation.

But since the 2016 election, it has become clear that merely appointing good judges cannot stop what the bad ones are doing, as leftist federal judges continue to strike down one after the other of the Trump Administration’s initiatives, as well as conservative state laws.

Even if a majority of the Supreme Court were to overrule every district court judge’s usurpation once an appropriate case reached it, leftist judges would still be a major brake on one side of American public life. Until conservatives somehow stop this judicial malpractice, all the work they do to elect whomever, to pass whatever laws, to appoint more good judges, is guaranteed to be undone by some bad judge putting his seal on some leftist group’s brief.

Nor can honest, nonactivist judges provide a counterweight on the other side of political conflict.  If conservative judges were the mirror image of leftist ones, there would be a cadre of them ready to invalidate the next leftist president’s every move, as well as every law and practice of California’s and other blue states’ governments. But there is not such a cohort in waiting.

A Tale of Two States
Red states over the past two years have been passing laws restricting abortion, while blue states have been passing laws expanding “abortion rights,” including measures that would allow killing babies outside the womb. The red state restrictions are practically null and void because leftist judges have pronounced them so. Because no judge has done the same, the blue state sanctions of infanticide stand.

There is a fundamental asymmetry between the Right’s view of law, and the Left’s. For conservatives, law is the Constitution as written, as are the laws lawfully passed under it, because these proceed from elections by the people. So are decisions by lawfully appointed judges.

For the Left, law is what meets theirs and their community’s best judgment.

The asymmetry between the Left’s legal culture and that of conservatives guarantees the permanent submission of the conservative side of American life. Conservatives respect the rulings of judges unless and until the Supreme Court invalidates them, and largely respect the Supreme Court’s rulings regardless of their content. They do so because of the link, however tenuous, these institutions have to the will of the people. Leftist judges—and not only judges—have the opposite of respect for the people. For them, the laws are what they say they are. Laws R Us!

Alternative Resolutions
If the conservative idea of American life is going to survive, it must either disable the Left from exercising tyranny through judges or match the Left’s attitude toward laws and judges—something is law only so long as we agree with it.

Disabling the Left’s judicial weapon is a merely political problem. Nothing in the Constitution gives any judge—including the Supreme Court itself—the power to invalidate any law or executive action, much less to set national policy. “Judicial review” grew from the fact that the Supreme Court (and derivatively other Article III judges) being a co-equal branch of government, may refuse to affirm any law which it finds to be in conflict with the Constitution.

But the existence of the inferior federal courts, their rules and jurisdictions are creatures of subordinate legislation, not the Constitution itself—as is the Supreme Court’s appellate jurisdiction. Under the Constitution’s Article III, section 2, mere law can restrict a district court’s powers to the case at hand in its own district and eliminate its dictation of policy. Conservatives can and should restrict the courts to their proper role.

Taking matters into our own hands is the other alternative. Abraham Lincoln’s comments on the Dred Scott decision set a standard: while he did not dispute the court’s affirmation of Scott’s slavery, he refused to take its decision as a rule for any other case.

Defying the reach of a federal court ruling—even one of the Supreme Court’s, never mind that of a district court—is within everyone’s power. Alexander Hamilton had made that point in Federalist 78: the judiciary’s fundamental power is neither more nor less than the power to persuade. You may be otherwise persuaded. Hamilton is clear that there is no constitutional duty to obey the courts—certainly not on policy.

Andrew Jackson applied that principle even to the Supreme Court’s decision in the specific case of the Bank of the United States in 1832: “John Marshall has made his decision; now let him enforce it!” There is no constitutional reason why any president, or governor, should forbear from carrying out a law or an executive decision just because a federal district judge’s opinion is that it violates some standard, The president or governor has his own opinion. In the final analysis, all depends on executive power, which, in turn, depends on popular support.

The Work of the People
Single district judges who have “struck down” so many of the initiatives on which President Trump was elected have framed the public issue: who rules? Were Trump to defy them, Jackson-style, his argument would be “the voters rule,” not these individuals’ discretion. Their only answer would be that their discretion is the rule of law. This is unconvincing.

Politically based defiance may also counter judges’ interference with democracy at the state level. In 1957, President Eisenhower sent federal troops to enforce a court order pursuant to Brown v. Board, to admit black students to Little Rock Central High School. This outcome was foreordained. Neither side meant to shoot. The presidency’ prestige was at its height, wielded by World War II’s recent victor.

In today’s deeply divided country—as central institutions are widely discredited—no president, regardless of his opinion would send federal troops to enforce a court order against opposition. If, for example, any state law were to ban abortion, the Army would not shoot the state’s police, with the cameras rolling, to enable an abortion. Nor can we actually imagine the reverse.

The only way out of our political impasse is through it. Judges cannot unite us again as a people. That remains the work of the people and their elected representatives.

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