No Deference Due

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.


17 thoughts on “No Deference Due

  1. An excellent piece, as usual. Thank you!

    What amazes one is how these unelected ciphers have managed to persuade everyone else in government that they are to be obeyed. Some of those who so meekly follow their dictates even have actual armies at their disposal.

  2. Pingback: No Deference Due | Reaction Times

  3. Outstanding column. I’m re-posting my comment from your February 10, 2017 post on the Chronicles of the Kritarchy.

    The solution to the issue of federal judges acting as philosopher-kings is to pare back the subject matter jurisdiction of the lower federal courts to hear questions arising under the constitution. Full stop.

    The US Supreme Court is established by Article III of the constitution, and it’s jurisdictional scope is set forth therein. Neither the executive nor the legislative branch can change this.

    By contrast, while the constitution authorizes the creation of a lower (i.e., district and appellate) courts, there is no *requirement* in the constitution to establish a system of lower federal courts. Lower federal courts are established by federal law and their subject matter jurisdiction is similarly defined by statute.

    Congress and the President can amend federal law (28 U.S.C. 1331) to remove, or severely limit, the original jurisdiction of the lower federal courts. This is the constitutional and correct remedy to an over-reaching judicial branch.

    As an historical aside related to your post, the first Congress did not grant the system of lower federal courts original jurisdiction over federal questions *precisely* because they understood that it would make the judicial branch too powerful. The Federalists, under John Adams, expanded federal court jurisdiction in a blatant attempt to expand and pack the judiciary at the end of the Adams administration. The Democratic-Republicans, under Jefferson, repealed the law and reverted to limited jurisdiction for lower federal courts. Federal court jurisdiction remained limited until Reconstruction.

    Conservatives and liberals are still fighting the battle that drove such a wedge between Jefferson and Adams that they did not correspond for almost the rest of their natural lives.

    • I don’t disagree. Judicial review is utterly amok, and even layman are capable of detecting the whiff of chaos and tyranny when any one of thousands of lower court factotums can re-write national policy and deny referenda.

      Trump needs to push quickly to the source of our social miseries (such as this and the 65 immigration act) rather than all this tinkering with line items and tax rates, which will fundamentally change nothing.

      • Here’s a good article on Obama’s effect on the court system. Whether one agrees or disagrees with Obama’s worldview, one must credit him for effective strategic thinking and playing the long game.

        Judicial reform should be high on Trump’s To-Do list. At the very least we need to eliminate the privileges of Senatorial Courtesy and the Blue Slip process. Judge Robart, the Seattle judge who struck down the first Executive Order, is on the bench because Democratic Senator Patty Murray recommended him and the Bush Administration acquiesced. This needs to stop.

        This is also a good place to make myself unpopular (again) by pointing out (again) that demographics is destiny and none of this really matters if we don’t evict California and her 55 electoral votes from the Union n the next 4-8 years. Conservatives face a simple choice at this time: evict California and a Republic comprising the remaining 49 states survives for another 50-100 years, or do nothing and watch the demographic tsunami sweep the Democrats into power permanently at the Federal level by 2028, ending the Republic as we know it.

  4. On a related note, I have grave concerns with Trump’s travel ban going to this Supreme Court. If you understand, as by now you must, that the vote will proceed strictly along political preference rather than anything whatsoever to do with a roll of paper in the National Archives, then Trump is sailing us into deadly waters.

    Which Justices will vote to support his presidential prerogative? Alito and Thomas.

    Which Justices will vote to uphold the lower court injunctions? Ginsburg, Breyer, Sotomayor, and Kagan.

    Roberts is a cephalopod and will simply put his finger to the wind before voting. But Kennedy, especially this late-stage liberal dementia version, is highly likely to caucus with the left in a majority bloc. And what do leftist majority blocs absolutely relish doing in high-profile cases? Permanently re-writing the constitution is the answer.

    If Trump’s EO goes up, it will lose. And that’s the best case scenario. The worst case is a grand pronouncement granting constitutional protections to all the world’s 7.5 billion Americans.

    It’s been many years since Brown v. Board of Education, and these liches are eager to carve their own place in liberal mythology. What if Kennedy finds that separate countries are inherently unequal and orders global “desegregation” as a result? That will make temporary travel bans from a handful of countries quite a small topic in comparison.

    An addendum to this comment: my point is not to counsel despair, but rather to never willingly place your fate in the hands of opponents in hopes they will succumb to a rare bout of good-faith.

    • I’ve pointed the same thing out here and other places. Most people who read sites such as this one seem to think it will be a slam dunk once Trump’s judge is on the Supreme Court, but I don’t think so. This line of thought relies on Roberts, who, in case people forget, essentially re-wrote Obamacare for the executive to make it acceptable to what passes for constitutional muster these days. Its far from a sure thing, especially when you add Kennedy to the equation. That old gasbag is even less reliable.

      Another interesting line of thought is the idea of 3 “co-equal” branches of government. The judicial branch part of that ‘co-equal’ line of thought was long believed to be comprised of the Supreme Court, but apparently it now comprises of hundreds, if not thousands or lower court judges. Each of these judges, apparently, are now able to decide what is allowed to be law for the entire country. Based on this line of thought, each of these thousands of robed lawyers apparently has the same power as the duly elected president. Why hold elections if the elected on serves at the whims of thousands of judges?

      Also, if this is an acceptable practice, why haven’t the 10 or so conservative/libertarian judges who exist in the US been using this tactic for the past 8 years?

      • That’s a great point. How and when did it happen that virtually everyone in the federal judiciary has the power to nullify the head of the Executive Branch?

      • Exactly. It would be no different than the deputy undersecretary of commerce announcing the Obergefell decision is no longer operative. Judicial Review at the top is a major problem. Offering it across the continuum is madness. Though it’s a madness the media has found convenient to embrace.

  5. Has anyone noticed? Of the three branches of government, only the judiciary conduct their business in pseudo-priesthood attire. Who decided that it would be so? Why? This may have much to do with the undue reverence that they receive from others, and the hubris in which they estimate themselves.

  6. Porter,

    Thank you for being an oasis of hate in the desert of equality.

    My favorite part of this whole debacle is having people like true American Judge Theodore D. Chuang of Maryland (originally from Pennsylvania, as all the Chuangs are) lecturing Americans about what American immigration is about. If there’s anyone in our history we have to thank for where we are today, it’s the Chuangs of Pennsylvania. A true blue blooded patriot heritage.

    • It is rather humorous. It all comes back to the idea that by simply setting foot on American soil, you are now an American, and therefore empowered to pontificate on what it means to be an American. Immigrate here and then declare the whole ‘nation of immigrants’ nonsense. I wonder what by chances are of immigrating to his home country and getting appointed to their court system? Or having my children given anchor baby status and getting the same? Just remember, Asia may be for Asians, Africa for Africans, etc, but America is for everyone…

  7. It’s infuriating when they don’t even bother to be cleverly deceptive–Bush 43 selling the Iraq War (Quick! before Saddam Hussein attacks) Roberts allowing ObamaCare as a tax, CDC director Tom Friedan endorsing Ebola imports: “Isolating countries won’t keep Ebola contained and away from American shores. Paradoxically, it will increase the risk that Ebola will spread in those countries and to other countries, and that we will have more patients who develop Ebola in the U.S.”
    Kennedy and Roberts will toss a coin to see who gets to be the bad guy this time when the Court rules that the only halt to immigration will be when a hell-hole equilibrium has been achieved and there’s no difference between Park City, Utah and Djibouti.

    Great article! The palpable anger is a nice touch : )

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