A reader, going by A reader, recently brought this analysis of the Kritarchy’s present behavioral impetus to our attention. It’s worth discussing, though doing so dispassionately calls for more self-discipline than I am paid to deliver. I found its general premise contemptible in the dumb way endemic to the barely smart. That premise, described in lush detail within the article, is that judges are likely making the perfectly rational decision that Trump is unfit for his office, and thus due no judicial deference.
That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.
Any honest advocate of this position is obliged by logic, good faith, and a commitment to avoid impeachment or sedition trial to address at least two essential elements of the argument. The first concerns the imperious formulation of judicial “deference.” The judiciary is one of three co-equal branches of the government. It does not grant magnanimous deference to its peers in the realms of legislative and executive action, because it has no standing in either from the outset. The court’s constant intrusions to the contrary are no actual basis of authority aside from the pusillanimous failure to resist them.
After all, it’s a torturing of the term to call it “deference” when you allow your neighbor to paint his house. It’s his house. But if he acquiesces when you tell him no, then it’s effectively his no longer. That applies to countries and governments, as well. So the question is not what will the judiciary permit a president whom it loathes, but rather what prior court cases will President Trump toss out, since we all agree there are no distinct lines of branch responsibility.
The fact is the question of Trump’s honesty, temperance, or fitness are not matters before the courts. Nor are they supplied with either the acuity or authority to address the question regardless. That finding has already been determined by a competing organ of the state. 306 members of the electoral college ruled that Trump is due the perquisites of his office in their entirety. No one asked any bow-tied district court embarrassment, and thus no one should be interested in their opinions on the matter. Trump’s personal qualities are simply beyond the court’s purview. Do these daffodils think they only have to deal with people they like? Have they considered how deference fits on the other foot?
And that’s the segue to the second issue. Nowhere does the linked article contemplate what deference is due the court from executives, legislatures, and the public at-large during its persistent expeditions outside its authority. Obedience to judicial diktat is presented as a physical law, and no more a matter for debate than the effects of gravity. Judges simply perch on the sovereign’s presumption: I speak, and it is thus. From the perspective of one who doesn’t wear robes to work, such blithe arrogance is breathtaking.
To advocates of the court, every action of congress, referenda, or the execution of Presidential powers are subject to the court’s fickle imprimatur. Though court decisions themselves are absolute and more sacred than the word of Allah (or at least more than those of second-tier deities, like God).
This equal-parts fiasco and pomposity was completely predictable after the long-ago Marbury v. Madison decision. In some ways I almost admire the court’s mild prior restraint. Because if we agree the constitution is exclusively determinative, and I exclusively determine what’s constitutional, then you can vote until your fingers bleed–I will remain your actual ruler. And so increasingly, they are.
But like all gray eminences, judges recoil from the recriminations their political ventures inevitably produce. Writing in a dissent to the travel ban’s overturn (and thus effectively in support of Trump’s visa authority, but not Trump himself) one judge could not resist complaining about the dirt kicked-up from his colleagues’ legal four-wheeling:
“the personal attacks on the distinguished district judge and our colleagues,” which, he writes, “were out of all bounds of civic and persuasive discourse” and “treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles.”
I’ll rebut that using the most civic and persuasive discourse at my disposal: if you don’t want to be treated like a political actor, and subject to all of the calumny, compromise, and invective that attaches to it, then stay the fuck out of political matters. Truly, hearing a member of the modern court complaining about being treated poorly as a politician is to hear a thief’s lament at being called a criminal.
Though that certainly isn’t cause for reflection. And so the article’s author proceeds to speculate on the trajectory of advancing legal doctrine.
Imagine a world in which other actors have no expectation of civic virtue from the President and thus no concept of deference to him. Imagine a world in which the words of the President are not presumed to carry any weight. Imagine a world in which far more judicial review of presidential conduct is de novo, and in which the executive has to find highly coercive means of enforcing message discipline on its staff because it can’t depend on loyalty. That’s a very different presidency than the one we have come to expect.
While we’re imagining…imagine a world in which court orders are met with disinterested nose picking. When the public has no expectation of the court’s objective judicial reasoning or constitutional moorings, and thus no deference to it. Imagine a world in which injunctions to import armies of foreign nationals and pay for them all carry no weight whatsoever. Imagine a world in which far less judicial review is granted by the other branches of government, and in which the court has to find highly coercive means in which to enforce its catalogue of increasingly ignored edicts. That’s a very different judiciary than the one we have come to expect.
At some point a society is obliged by competing factions to determine by which it will be ruled. As the legislature has receded into an almost ceremonial role, it was inevitable the executive and judicial branches would come into increasing friction. Both are completely political institutions, though only one subjects itself to the process of politics. Consequently the court never cultivates talents of leadership while still retaining an undiminished appetite for leading. What results are plodding and mousy men demanding power while demanding no discomfort from wielding it. And this only works while the public lets you hide behind that piece of paper you ignore.
Those craving power are ultimately forced into accountability. Leaders have to lead. And it’s unlikely oafs like those now penning anti-Trump injunctions could lead a Somali to Sweden. They do not reason, persuade, or inspire. They simply order. And no tyrant earns his title without charisma. One day a president is going to attack the Kritarchy’s root: universal judicial review. I hope that is soon. Otherwise it will eventually come down to the age-old constitutional question: how many marshals have they got? I imagine the ultimate boss of the Marshals Service knows the answer.