From Suzanne Spaulding at Lawfare:
“Judicial independence is not conferred so judges can do as they
please. Judicial independence is conferred so judges can do as they must.” This
essential insight from Justice
Anthony Kennedy is cited by Chief Justice John Roberts in his 2024
Year End Report on the Federal Judiciary. The report rightly expresses
concern about declining
trust in the independence of the courts.
On March 4, following an address to Congress, cameras caught President
Trump patting Roberts’s shoulder, saying, “Thank you again. Thank you
again. Won’t forget.” Earlier, Attorney General Pam Bondi—commenting
on the freeze
on federal funds instituted by the administration—asserted that “the Supreme Court is
backing us up.” Yet, on Wednesday morning, the Supreme
Court rejected a plea from the administration to overrule a lower
court’s decision that funds must be released to pay foreign aid contractors for
work they have completed.
That said, many more cases involving the current
administration are making their way to the Supreme Court. When faced with even
more fundamental constitutional claims, there is a risk that, in a sincere
effort to preserve the institution and avoid a constitutional crisis, the Court
may seek to sidestep a significant confrontation with the executive branch in
the face of recent threats to ignore court orders. This would itself reflect a
devastating lack of independence and de facto create the very constitutional
crisis and damage to the public’s trust that the chief justice presumably seeks
to avoid.
Roberts’s entire 2024 report focuses on the importance of
independent courts. He describes King George’s efforts to undermine the
independence of the courts in the colonies, noting that such actions
contributed to the colonies’ rebellion. He reminds us of Alexander
Hamilton’s Federalist
78, quoting the French political philosopher Montesquieu in support of the
principle that “there is no liberty, if the power of judging be not separated
from the legislative and executive powers.” He then cites four areas of
activity that “threaten the independence of judges on which the rule of law
depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to
defy lawfully entered judgments.” These threats are designed to coerce judges
into ruling based not on the law but rather to avoid the threatened action,
thus undermining their independence.
The threats the chief justice describes are very real.
Violence and threats of violence
against judges have skyrocketed recently in the U.S. Efforts
to impeach judges who rule against actions by the current
administration reflect the kind of intimidation, short of violence, that
threatens careers. And, as Roberts points out, disinformation—that is,
intentional lies as distinguished from disagreement and criticism—is amplified
and exacerbated
by foreign and domestic actors, including Russia, who see undermining
trust in the courts as a powerful way to weaken our democracy.
But it is threats to defy court orders that most clearly aim
to defeat the courts’ independence and demolish a key foundation upholding our
constitutional republic.
Roberts notes that two of the major pillars of our
republic—separation of powers and judicial review—create an inevitable tension
between the branches of our government:
Every Administration suffers defeats in the court
system—sometimes in cases with major ramifications for executive or legislative
power or other consequential topics. Nevertheless, for the past several
decades, the decisions of the courts, popular or not, have been followed ….
Within the past few years, however, elected officials from across the political
spectrum have raised the specter of open disregard for federal court rulings.
These dangerous suggestions, however sporadic, must be soundly rejected.
Some
observers saw this as a warning shot across the bow to Vice President Vance,
who in September 2021 said that Trump, if reelected, should “fire every single
mid-level bureaucrat, [and] every civil servant in the administrative state …
and when the courts stop you, stand before the country like
Andrew Jackson did and say: ‘The chief justice has made his ruling.
Now let him enforce it.’” More recently, the president, citing a quote
attributed to Napoleon, wrote “He who saves his Country does not violate
any law.” However, the president has also stated his intention
to abide by the decisions of the courts even if he disagrees with
them.
Regardless, it would be a mistake for the courts to make
decisions on the assumption that a ruling against the administration will
inevitably provoke a clash between the branches. Threats to ignore a court
decision are designed to elicit such behavior. The intent is to intimidate the
courts into reaching for dubious procedural or substantive excuses not to find
constitutional impediments to executive branch actions. Yet, if these
legalistic gymnastics lack legitimacy, the constitutional crisis will not have
been avoided, even if it is less theatrical. The role of the Court in
maintaining the constitutional framework of checks and balances and serving as
an independent interpreter of the Constitution—calling balls and strikes—still
will have been ceded, along with the public’s trust.
If the executive branch is determined to provoke a
constitutional crisis, then confrontation is inevitable. It is better that the
crisis arises from the Court doing its job than from the Court being cowed into
submission.
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