Three Cheers for (a Flawed) SCOTUS

I agree with the criticisms of some Supreme Court justices highlighted by my colleague Dan Mitchell. Justices often struggle to demonstrate a consistent philosophy that can withstand partisan political pressures. Some of them try and fail, while others are simply partisans.

That said, I think it’s important to contextualize these critiques by recognizing that the judiciary is the last remaining properly functional branch of government.

The executive branch has long trended toward imperialism through the consistent erosion of legal and political constraints, emboldened and enabled by a public that prefers a powerful president. The legislature has both turned a blind eye to executive overreach and actively relinquished its constitutional responsibilities. But under Trump both of these trends have accelerated.

The executive branch now routinely operates without legal authority and ignores court orders. The Department of Justice has given up any pretense to the objective enforcement of the law and primarily operates instead to punish the president’s political enemies and protect his friends and allies. And the level of corruption, self dealing, and grift is historic.

So it’s noteworthy that SCOTUS, and in particular the Gorsuch concurrence, not only stood up for Constitutional constraints on power, but laid out a robust defense of the importance of the legislative process.

In the land of the blind, the one-eyed man is king. And in an America with highly dysfunctional political institutions, the only semi-functional branch is Supreme.

It is thus quite alarming that political partisans continue to try and chip away at the legitimacy of the Supreme Court. Barack Obama stretched political norms with his threats to the court, implying that its legitimacy could only be maintained by affirming the lawfulness of his signature healthcare legislation. It’s possible these threats influenced Roberts’ decision to switch his vote and save Obamacare.

Attacks have only intensified since. During the 2020 campaign, Democrats became giddy at the prospect of packing the court, a radical politicization many progressive still hope to enact upon a return to power. The left has subsequently manufactured scandals to undermine and delegitimize the court.

But Trump’s response to the decision striking down his unlawful IEEPA tariffs, like so much of his behavior, blows past all prior norms. He declared the judges who upheld the Constitution to be “fools and lapdogs,” that they were an “embarrassment to their families,” and even “swayed by foreign interests.”

These attacks are contemptible. Donald Trump seems most comfortable running a personalist autocracy in the style of Vladimir Putin or Saddam Hussein, complete with shameless plastering of his name and mug all over, and thus cannot tolerate the normal constraints, disagreements, negotiations, and give and take demanded by our republican system and its separation of power.

Congress has thoroughly humiliated itself by consigning the institution to the cuck chair for the foreseeable future. Until such time as voters demand its legislators attempt legislating again, SCOTUS and the judiciary stands alone as the last serious political institution interested in upholding the rule of law.

Cross-posted at CF&P.