By Selwyn Duke
It’s an old story: When people are allowed to get their way for too long, when they’re never told “No!” they may get too big for their britches.
They may develop a sense of entitlement and even become narcissistic.
And proving that judges are no exception to this reality are a number of recent court “opinions” designed to scuttle President Trump’s agenda.
One disallows DOGE from scrutinizing Treasury Department data.
Another states that the Trump administration must unfreeze funding on grants and loans.
A different opinion puts a freeze on Trump’s buyout offer for federal employees.
And yet another ordered the administration to restore sexual devolutionary (on “gender” and “sex changes”) government web pages Trump’s team had rightly deleted. So Biden could create those pages but, somehow, the current president may not remove them. Yes, it’s insane.
There’s a little known reason, however, why the rogue judges in question could so confidently engage in such insane judicial overreach. To wit:
We long ago accepted the overreach known as “judicial supremacy.”
This brings us to the simple remedy. Trump could just paraphrase the paraphrase of Andrew Jackson and say, “The courts have made their decisions — now let the judges enforce them.”
A “Constitutional Crisis”?
Some say this is illegal, that it would create a “constitutional crisis.” A “legal analyst” and ex-federal prosecutor named Elizabeth de la Vega, for example, condescendingly stated Monday that someone taking this position should “at least read Marbury v. Madison.” That’s a deal.
Note here that Marbury was the 1803 SCOTUS opinion declaring that the judiciary must be the ultimate arbiter of laws’ and actions’ constitutionality and that, consequently, its rulings can constrain the other two governmental branches. Translation:
The courts gave the courts their trump card (and Trump card) power.
Not the Constitution — the courts themselves.
Well, that’s like me crowning myself King of America and saying, “Now I get to rule — and you have to obey me.” Are you O.K. with that?
(And while we’re at it, off with those activist judges’ heads.)
As to this, there’s a reason Thomas Jefferson said in 1819 that if the judicial-supremacy opinion is valid, “then indeed is our Constitution a complete felo de se” (act of suicide).
There’s a reason a 5th Circuit judge pressed Barack Obama’s DOJ in 2012, after Obama had spoken dismissively of the courts, to submit a memo on the administration’s position on judicial supremacy.
And there’s a reason late Justice Antonin Scalia warned in his dissent against the outrageous 2015 Obergefell v. Hodges (marriage) opinion that with “each decision ... unabashedly based not on law,” the Court moves “one step closer to being reminded of [its] impotence.”
That is, judicial supremacy is not in the Constitution. That’s why Jefferson was incredulous about it, the 5th Circuit judge was insecure about it, and Scalia warned that the Court could be told to forget about it.
It’s an extra-constitutional power the courts enjoy at the other two branches’ pleasure. The moment they decide to stop playing the sub role in this master-servant relationship, the power goes bye-bye.
Method to the Madness
Now, it’s helpful understanding why, in a world in which arrogating power to oneself or one’s corps is status quo, the other two branches do play this sub role.
First, it’s a tradition, one so entrenched that pseudo-intellectuals will defend it as if it’s law.
But a very significant reason was epitomized by something then-Ohio governor John Kasich said in 2015 after the Obergefell decision.
“[T]he court has ruled,” he proclaimed — “and it’s time to move on.” He seemed almost gleeful. And why not?
Kasich no longer had to take a stand on this controversial issue and thus alienate part of the electorate.
And Kasich’s attitude is the norm.
It’s the same reason why, I can guarantee you, many Republicans got severe agita when Roe v. Wade was overturned in 2022. Now they actually had to legislate, as they’re supposed to, on prenatal infanticide. So what legislators — and presidents often, too — get from judicial supremacy is the luxury of, like Pontius Pilate, being able to wash their hands of a matter: “The courts have ruled! Don’t look at me!”
Apropos here, just as legislators outsource their responsibility to judges, the latter outsourced their responsibility to bureaucrats with the now overturned Chevron opinion. What judges got from this was the benefit of lightening their case loads and not having to strain their gray matter trying to settle legislative ambiguities.
Regardless, whether the decisions are made by unelected judges or unelected bureaucrats, the result is identical: You don’t have a government of, by and for the people. In fact, it’s even worse than that.
If the courts can overturn law, contravening the will of the people’s duly elected representatives, then they’ve to an extent arrogated to themselves the legislative power. If they can dictate to the president what executive actions he may or may not take, they’ve to an extent arrogated to themselves the executive power. And, of course, they enjoy their judicial power.
Now consider something James Madison, the Father of the Constitution, wrote in The Federalist Papers, Number 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands” is “the very definition of tyranny.”
We have for ages been venturing too close to judicial tyranny. In fact, Jefferson warned that judicial supremacy would reduce us to an oligarchy — of judges.
How it’s Supposed to Work
Remember, too, federal and state officials take an oath to uphold the Constitution.
They do not take an oath to uphold judges’ opinions.
This means that if I’m a president or governor and a court issues a ruling I truly believe is unconstitutional, I have a duty to ignore it. Otherwise, I’m violating my oath.
“But what of rogue legislators or presidents?” some may ask. Well, what of rogue judges (who apparently are everywhere)?
The answer is the Founders’ one: No branch can intrude into the others’ spheres. This doesn’t mean there aren’t checks and balances. If, for example, a president believes a law is unconstitutional and refuses to enforce it, or takes an allegedly unconstitutional executive action, Congress can try to remove him; it can also impeach and remove renegade judges. As for House representatives themselves, the remedy is removal via the ballot box. This is why they must run for re-election every two years: Since they’re meant to be the most powerful branch (e.g., spending bills must originate in the House, and only it can file impeachment charges), they’re placed closest to the people’s reach.
Power means nothing, though, if not exercised. If congressional and executive powers are outsourced, it then can reduce us to what we’ve become: a government of, by and for judicial oligarchs.
So, no, President Trump doesn’t have to obey blatantly unconstitutional court opinions. This said, with how he’s shaking up the system and busy draining the bureaucratic swamp, it’s perhaps politically prudent to remedy the current judicial adventurism through the higher courts, as he’ll almost assuredly win on appeal. At some point, though, it will be time to drain that fetid judicial swamp and address the real constitutional crisis: the rule of judges who would be kings.
