But it is under grave attack from people in powerful positions and their legal sycophants, who are giving currency to notions intended to delegitimize and neutralize the courts’ vital role in our constitutional system.
I come to my perspective not only as a judge for the past nine years and as an adjunct professor of constitutional law, but as a lawyer who spent nearly 30 years at the Institute for Justice and the Goldwater Institute fighting for the little guy against government tyranny and powerful private interests – and, more often than not, winning.
That is possible only because courts are independent institutions that provide a level playing field, for the most part free from political influences. In turn, that distinguishes our system from authoritarian regimes like China, whose courts are extensions of the ruling party. That crucial difference means that in America, constitutional rights are more than mere paper promises.
Yet our courts increasingly are under attack, from both left and right, for “obstructing” political agendas. Of course, politicians and their supporters are free to slam courts and their decisions. Ironically, the role of courts in such circumstances is mainly to protect their freedom to do so.
But highly dangerous tactics and arguments are being urged to counter rulings with which the government and its powerful allies disagree – specifically (1) defying court orders; (2) impeaching judges; and (3) arguing that the president, when he takes unilateral action through executive orders or emergency decrees rather than legislative enactments, has the power to define his own constitutional authority. I refer to those promoting such views as revisionists because they reject founding principles without which our constitutional republic cannot survive, even as they cloak themselves in constitutional rhetoric.
In attacking this triple threat to an independent judiciary, I emphasize that I am not addressing the theory of the “unitary executive,” whereby the president has plenary authority over the executive branch; nor the question of nationwide injunctions by individual federal district courts. Both are hotly contested issues with thoughtful arguments on both sides. Nor do I express opinions on any ongoing court cases.
The revisionists assert that the power of judicial review – to strike down unconstitutional actions of the political branches – was invented by the courts in Marbury v. Madison (1803), which I hope most readers remember from Civics 101. In reality, we inherited that system from English common law, and the power of judicial review was a central argument the framers made in securing constitutional ratification by the states.
The framers’ brilliant insight was that the political branches could not be trusted to police their own boundaries. Thus, they created an independent judiciary, appointed by the president and confirmed by the Senate, invested with lifetime tenure in order to, as Chief Justice John Roberts later aptly referred to it, call constitutional balls and strikes.
As Alexander Hamilton proclaimed in The Federalist No. 78, constitutional limits “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
To be sure, Hamilton also warned against courts exercising either legislative or executive authority – and they have too often transgressed those limits. But those errors can be corrected on appeal, and by electing officials who will appoint judges who abide by the rule of law. Indeed, the current president named three U.S. Supreme Court justices and hundreds of lower federal court judges in his first term, and will likely appoint hundreds more.
But the revisionists propose different approaches. One pundit, Josh Hammer, writes that because courts are “functionally impotent,” the executive branch can simply ignore court orders with impunity. If a court holds a lawyer in criminal contempt, he argues, an arrest would have to be made by a federal marshal – who reports to the attorney general, who reports to the president. If the lawyer is prosecuted, the president can always provide a pardon – “Constitutional crisis, averted!”
Apart from promoting lawlessness (what an example for our kids, right?), this prescription overlooks attorney ethics – a lawyer who counsels a client to ignore court orders can be relieved of the privilege of practicing law. How about, instead, appealing adverse decisions and making sound legal arguments – if you have them?
Another “tool” Hammer advocates that Congress should “use more often” is impeaching “wayward” judges. Only 15 judges in our nation’s history have been impeached, and only eight removed. For good reason: they must be convicted of treason, bribery, or other high crimes and misdemeanors. “Disagreeing with a judge’s opinions” or “thwarting a president’s agenda” are not among the impeachable offenses.
Since Bill Clinton, the impeachment power has been weaponized, as the current president well knows. Do we really want to water down and politicize the standard even more? Or is the point to intimidate judges by “meting out both large and small punishments” as Hammer urges?
I experienced this type of retribution last year when a colleague and I stood for voter retention to the Arizona Supreme Court. Liberal activists who were angry about an abortion decision our court made launched a campaign against us, not based on our legal reasoning but on a policy outcome they disliked. Some on the right joined the fray because they disagreed with some of our election opinions.
The campaign on our behalf focused entirely on judicial independence and keeping politics out of the courts. On that basis, we won retention with over 58% of the vote – indicating, I hope, that a popular constituency exists for an independent judiciary. But in the face of mounting threats, judges must act with integrity, courage, and an unyielding commitment to their constitutional oath.
The most dangerous notion floated by the revisionists is that the president should get to decide his own constitutional authority – which would mean he has no limits. Subordinating the judiciary to the executive branch is a favorite device used by authoritarian regimes on both left and right. If that happens here, the framers’ design of a government of limited and defined powers will cease to exist.
Historically, the courts have provided an important safeguard against presidential excesses. The preeminent case was Youngstown Sheet & Steel Co. v. Sawyer (1952), in which the Supreme Court struck down President Harry Truman’s seizure of steel mills in the midst of a strike that he deemed might impair the Korean War effort. The Court held that, absent congressional authorization, the president lacked the power to seize private property. Although reportedly stunned by the decision, Truman returned the companies to their owners within minutes of the ruling.
Until November 2024, most conservatives supported a robust independent judiciary. When Barack Obama issued his DACA executive order and when Joe Biden issued his order canceling student loan debt, conservatives went to court arguing (successfully) that both presidents exceeded their constitutional authority. So too did they challenge sweeping emergency orders issued by the president and governors during the COVID-19 epidemic. Our principles should not shift based on who occupies the White House.
Going forward, the rules we set today will be the rules that apply tomorrow. A future liberal president, unbound by judicially enforced constitutional limits, might decide to constrain rights that conservatives cherish, such as property, guns, and religion.
If that happens, we can only hope that the disputes will play out in the courts of law. The alternative is unthinkable. It is also unnecessary, so long as our citizens insist on living in a nation governed by the rule of law, rather than one in which the ends justify the means.
By Clint Bolick