The US Constitution made the presidency the highest office in America, which makes it effectively the highest office in the world. Modern presidents have uniformly added even more power to the presidency, over Congress’ feckless gripes. And so US president Donald Trump has inherited the office at its apex. Even Trump supporters have cause for concern about the incoming president’s incredible power. The Constitution designed Congress to be the main check on the president, but the Republicans who control the legislature are unlikely—at this early stage—to interfere with Trump’s policy priorities.
Many hope that the federal judiciary will serve as a check on the president. The courts already seem to have their hands full. Most recently, Trump’s immigration executive order has launched a thousand lawsuits. Multiple courts have greeted the so-called Muslim ban with emergency stays, including a nationwide order that has been upheld unanimously by a panel of the Ninth Circuit Court of Appeals. But can we really count on the courts to serve as a check on the executive? The answer, I believe, is yes.
The founding fathers created the judicial branch to be independent of political fads so that it could enforce our constitutional commitments in times of tumult. But that doesn’t mean that judges are apolitical. The Ninth Circuit panel that upheld a stay of president Trump’s order was comprised of three judges, one nominated by president Jimmy Carter, one by president George W. Bush, and one by president Barack Obama. Overall, nearly half of the members of the federal bench are Republican appointees. And if the Senate approves judge Neil Gorsuch, the Supreme Court will consist of a majority of Republican appointees, including one appointed by Trump.
Senate Democrats are gearing up to oppose Gorsuch’s nomination on principle. Forget his impeccable background; as a Republican appointee, they fear, he will simply look for opportunities to advance his political ideology rather than the law. If there is one cliché in legal academic circles it is that judges exercise near-absolute discretion to implement their policy preferences, especially in constitutional cases. But they are still one of America’s best defenses against executive overreach.
Indeed, now more than ever, Americans need to trust the federal judiciary, including Judge Gorsuch, to stand up for the Constitution. The vast majority of judges—regardless of their political party—have spent their entire adult lives preparing to do so.
Here’s why the founding fathers, especially Alexander Hamilton, would have expected Democrats in the Senate to approve Gorsuch.
Ever prescient, Hamilton anticipated our current political moment. In Federalist No. 78, he noted the danger posed by “ill humors, which the arts of designing men … sometimes disseminate among the people themselves.” Such a disease in the body politic can “have a tendency … to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
The antidote, argued Hamilton, was an independent judiciary. A judge’s job is to apply the law. When two laws conflict, a judge applies the superior law and ignores the inferior one. Because the Constitution is the “supreme Law of the land,” Hamilton knew that federal judges would apply it, even when doing so would require them to invalidate an act of the government; regardless of ensuing political controversy, courts would be merely enforcing the “will of the people, expressed in the Constitution.”
Hamilton also knew this would put a target on the back of the federal courts. Contravening the majority is unpopular, at least for a time. And courts have virtually no way to protect themselves. Unlike Congress and the president, noted Hamilton, the courts “have neither FORCE nor WILL, but mere judgment.” To insulate federal judges from the vicissitudes of politics, the Constitution gives them life tenure and a secure salary.
The standard modern rebuke to Hamilton’s argument is that politics has infiltrated the federal courts via the appointment process. Did we not just witness an unprecedented refusal by the Republican-controlled Senate to even consider confirming president Obama’s Supreme Court nominee? Indeed, since at least the landmark abortion rights decision of Roe v. Wade, the confirmation process has devolved into a partisan slugfest. Both parties have their litmus tests (see, e.g., Roe) and many voters care about the Supreme Court’s composition. How did the “least dangerous” branch become so politically controversial?
Perhaps Hamilton was soft-peddling something. After all, some of the Constitution’s terms are broad; they seem to invite judicial “construction.” “Equal protection of the laws.” “The freedom of speech.” “Due process of law.” When a court runs into these phrases, it has two choices: Either defer to the government’s view, abandoning its duty of independent judgment, or exercise some discretion to construe and apply the constitutional text as it sees fit. The modern Supreme Court has increasingly taken the latter approach.
From the beginning of the republic, those who have disagreed with the Court’s constitutional decisions have charged it with usurping the American people’s authority to change the Constitution. Voters care who is on the Court because they rightly care about the content and legitimacy of our fundamental law.
Was Hamilton blind to the discretion inherent in constitutional adjudication? Not at all. In fact, his response to this inevitable prospect is also the reason why we can trust judges to stand up for the Constitution, even amidst the political confusion, distrust, and shortsightedness that currently plagues Washington, DC.
“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents,” Hamilton argued. His concern was not “discretion” per se—he understood it was an inescapable part of the exercise of judgment. Hamilton’s concern, rather, was “arbitrary discretion,” discretion that was not subject to and could not be measured against prior law.
Hamilton believed in the rule of law, of course, but also believed that the more law there was, the more “long and laborious study” it would take to become a lawyer, and therefore the harder it would be to become a good judge. Knowledge alone was not enough. Hamilton argued that federal judges must “unite the requisite integrity with the requisite knowledge.” Because they have discretion in constitutional judgment, judges should possess certain virtues: the intellectual virtues of rigor, precision, and indifference that come from studying the law; and the moral virtues inherent in “integrity,” including faithfulness, honor, and candor. Consistent with the political theory that inspired the constitutional framers, Hamilton was arguing that judges should be models of “republican” virtue—highly skilled and thoughtfully disinterested public servants.
The US court system at every level is filled with people who embody these virtues. Legal education is intellectually demanding. One can hope to join the federal bench only after doing well in a good law school and excelling as a practitioner or scholar. By the nature of their work, lawyers and judges are accustomed to intellectual debate, complex analysis, and the value of precise, clear, and sincere communication. Additionally, one upside of the politicization of the federal courts may be that extreme vetting of judges helps guarantee a high likelihood of personal integrity.
None of this means that judges will agree about what the Constitution requires. Judges reasonably disagree all the time. Sometimes—especially in difficult constitutional cases—their disagreement aligns with the party of the president who nominated them. But when they disagree they do so as members of a profession that broadly agrees on certain liberal norms: the rule of law, the separation of powers, the value of the adversarial trial, and an independent judiciary. Law schools work to instill these norms, the practice of law assumes them, and the vast majority of federal judges depend upon them.
The independence of the federal judiciary, as Alexander Hamilton knew, depends not only on constitutional structure but also on people—people who have been ingrained with certain virtues and liberal norms. Will they disagree about some of the outcomes of constitutional litigation against president Trump? Undoubtedly. But Democrats and Republicans alike should trust that none of them—including Trump appointees like Gorsuch—will roll over, be cowed by tweets, or decline to exercise what chief justice John Marshall described long ago as their duty to “say what the law is.”