Recent events have revealed a subtle crack in the current governing coalition in the United States. Let’s call one side the “Constitutional Faction.” Perhaps exemplified by the nomination of Judge Neil Gorsuch to the Supreme Court, this side of the Republican Party, which includes elements of the Tea Party, identifies with a strict originalist interpretation of the Constitution and a suspicion of executive power. Judge Gorsuch is known, for example, to be skeptical of the expansion of presidential power through judicial deference to administrative interpretations of statutes.
Let’s call the other group the “Authoritarian Faction,” which takes a more ... shall we say casual ... approach to the impediments that the law might put in front of political goals. This faction is exemplified by the events surrounding the recent immigration executive orders, which divested lawful permanent residents of their hard-won freedom to come and go across our borders on the basis of thinly veiled religious bigotry. More lawlessly still, when courts attempted to restrain them, they were met with defiance from some rogue Customs and Border Protection officials and with attacks on a “so-called judge” from none other than the president.
There is conflict between those factions already, as Judge Gorsuch was quoted describing President Donald Trump’s tweets about the judiciary as “demoralizing” and “disheartening.” Those of us who are concerned with protecting the democratic rule of law should, regardless of political ideology, work to promote the predominance of the Constitutional Faction over the other. Above all, this means supporting, and demanding that our elected officials support, the independence of the judiciary and the obedience of our elected officials to court orders.
To see what this amounts to, let’s go back to Alexander Hamilton. In his essay “Federalist No. 78,” Hamilton explained that the judiciary is the “least dangerous branch” of government because it controls neither military force nor finances; its ability to serve as a check on the other branches is solely a function of the power of persuasion.
The judiciary will always be the least dangerous to the political rights of the Constitution. Alexander Hamilton
Persuasion is a weak force indeed when it is set against the direct coercive power wielded by other branches. So why does it work? I, and numerous other scholars, have argued that typically the other branches of government obey because the people themselves respect the law and trust the courts to settle disputes about the legal boundaries that govern the other branches. Because of this, the judiciary can serve what I described in my book, The Rule of Law in the Real World, as a coordinating function, helping ordinary people hold their government to the law by acting collectively to punish it at the ballot box should it disobey.
This is true in other countries ― even Britain’s courts, which formally lack the power to strike down acts of Parliament, have succeeded in causing the repeal of anti-terror legislation that those courts had declared to be contrary to Britain’s international human rights commitments. The adverse court rulings generated enough political pressure to lead to their repeal. Hamilton correctly understood that judicial persuasion is a powerful political force.
But this hasn’t always worked. Lincoln famously failed to follow a court order to produce a Civil War prisoner in a case called Ex Parte Merryman. The state of Georgia refused to follow a Supreme Court ruling relating to the rights of tribal sovereignty in Worcester v. Georgia, and Andrew Jackson declined to help the court enforce it. And during the Great Depression, Roosevelt toyed with extraordinary measures to bring to heel a recalcitrant Supreme Court that kept striking down his economic measures, such as the infamous “court-packing” plan that would have radically increased the number of justices on the court in order to add votes to uphold the New Deal.
Those were all unusual times of deep political conflict and, arguably, took an extraordinary willingness on the part of ordinary people as well as political actors to support extra-legal action in the interests of (in the case of Lincoln and Roosevelt) handling dire national emergencies and (in the case of Jackson) populist furor.
In ordinary times, even truly controversial court decisions, such as Roe v. Wade and Bush v. Gore, are obeyed by elected officials across the political spectrum because of the consistent trust in which the people vest in the courts. Even a president as lawless as Richard Nixon bowed to the commands of the Supreme Court when they ordered him to release his incriminating Watergate tapes (minus an infamous 18.5 minutes).
There has been, historically, more trust in the judiciary than in the other branches. However, that trust has recently declined and has begun to assume a partisan character. At the same time, Trump’s populist political appeal has been compared to Andrew Jackson’s ― raising the worry that he, too, might be able to avoid political punishment for ignoring the courts.
This is exceedingly alarming. To be precise: the danger is that high-level officials, or lower-level officials with aligned preferences like the aforementioned rogue CBP agents, could come to believe that they have de facto judicial impunity. High-level officials could ignore court orders without being punished by the electorate or impeached by Congress, and then low-level officials could do so too and be protected from enforcement of contempt orders and employment-related sanctions.
The danger is that high-level officials will come to believe that they have de facto judicial impunity.
In order to prevent the executive from going down this road, we need to all publicly, visibly and aggressively support the power of the judiciary. The slightest evidence of executive branch disobedience of a valid judicial order should be met with immediate and sustained public protest, combined with those classic tools of political pressure that actually do work, like annoying one’s elected officials over the telephone. Importantly, this must be nonpartisan and even counter-ideological: the left needs to demand that liberal officials be punished for defying conservative judicial rulings just as the right needs to demand that conservative officials be punished for defying liberal rulings.
In the long run, this imperative might actually give us some small, faint reason to hope for an amelioration of our terrible political polarization. Maybe (and I recognize that this is a very big “maybe”) the Constitutional Faction of the right and the progressive left can find some common ground in a shared demand that the executive branch be held accountable to the Constitution, the laws of Congress and the judicial rulings that interpret them, regardless of ideological preferences.
In the more optimistic fever dreams of this constitutional law professor, I imagine that the American Civil Liberties Union members and the Tea Party can start to talk about their shared commitment to their admittedly very different readings of the Constitution.
Let’s try for it?