Sunday’s NYT included a Ross Douthat column which contained the following related, but different, threads:
- Trump was just speaking the truth when he talks about partisan judges.
- We are currently faced with the rise of two imperial powers–the judiciary and the president. They are likely to collide at some point, with the president of the day being the likely winner.
Is he right? Let’s break it down a bit more:
- The “partisan” judiciary is not exactly a myth, but it is an oversimplification. Most of the decisions that Douthat hates over the last fifty years were supported by justices appointed by GOP presidents. The right has decided to make sure this never happens again by vetting potential nominees through the Federalist Society, which is what has actually changed in the process. That said, judges don’t have unlimited authority to interpret the law as they see fit, the vast majority of cases (even those heard by the Supreme Court) have few partisan overtones, and judicial philosophy is frequently more important than political affiliation. Even the current GOP members of the Court analyze legal issues differently, which matters more than most people think.
- Yes, the presidency has become more “imperial” over time with regard to foreign policy. With legislation–no. Obama and Trump both outsourced a lot of the leadership role to various members of Congress.
- No, the judiciary has not become more “imperial;” it can only hear the cases that come to it. Douthat’s view on this subject is clearly influenced by his loathing of the decisions on abortion and gay rights.
- Who would win a battle between the judiciary and the presidency? That is an outcome that Chief Justice Roberts will desperately try to avoid. He understands that public acceptance of the legal process is a norm which sustains liberal democracy. If the process is viewed as completely partisan, and the law is just a cloak covering raw power, then the legitimacy of both the legal system and our entire scheme of constitutional government will disappear, and we will be left with, at best, illiberal democracy. That would probably suit Trump just fine.