Judicial Independence Threatened

Judicial independence is vital, and it is being threatened. Our Republic needs it. It is the sine qua non, the “without which nothing.”  Democrats would be well to remember that.

“Judicial independence” may sound high-minded, esoteric, irrelevant, or old-fashioned – but it is none of those things. If you believe in real justice, that is, non-political, no baloney, fairness, keeping America’s judiciary – our court system above politics is key. And big threats loom.

At this moment, four threats loom and need focus. 

First, the Biden White House is gradually undermining the constitutional principle of “separation of powers” by effectively ignoring, bypassing, overriding, and intentionally misinterpreting significant Supreme Court precedent.

In just one year, the administration has managed to try stuffing the basket by ignoring federal rulings on a range of issues. Examples are legion.

In September 2021, the US Supreme Court permitted a Texas anti-abortion law to go into effect, a temporary measure that allowed private citizens to bring suits to enforce the abortion restriction – just as citizens have the right to enforce hundreds of federal and state laws.

In response, the White House tried to upend the decision with federal regulations, threats of counter-prosecution, a lengthy statement that ended with: “I am directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to … government agencies “to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions …”  In short, I am ignoring the Court.

In June, the Supreme Court effectively said an eviction ban, which robs landlords of critical income, could not be extended unilaterally by the White House, when it ended on July 31st. Biden ignored the Supreme Court’s requirement that the ban could only stand if legislatively passed and signed; he did it by executive order anyway.

The surprising part about this is, unlike some inter-branch misunderstandings, Biden knew he was ignoring the Constitution; his reissued ban was unconstitutional, and he did it anyway. As he said, “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster….” He still did it and was slapped down again by the Court.

He has done this kind of thing over and over, in effect using the imputed argument that somehow a 5-4 or 6-3 judicially conservative – textual – court is not legitimate.

Second, Democrats in Congress are pushing to undermine the legitimacy of a judicially conservative High Court majority, an attempt to preempt, influence, intimidate, or threaten the High Court if it overrules the Roe v. Wade decision.

One Democrat Senator recently indulged a tirade, arguing that any attempt to change the law, by reviewing the juridical basis for Roe, would trigger a “revolution.” The Senate Majority Leader would have said the Court “will pay.”

All this is utterly inappropriate. The Congress should not be seeking to undermine the highest court in the land, a co-equal branch that has the job – or has for the past 200 years – to “say what the law is.” 

We have a final arbiter of Constitutionality because we aim to be a nation of laws, not politics, personality, and fungible values. The Democrats do not get this.

Third, a follow-on threat – looming large now and opposed by both the sitting justices and recently deceased liberal Justice Ruth Bader Ginsburg – is a Democrat threat, overt and open, to politically “pack” the court. 

In other words, to get their way – on Roe and everything else – they aim to stack the deck, change the rules after 150 years of a nine-member High Court. If they cannot win fair, under the law, they will cheat.

On the one hand, this is not surprising – after the troika of Russia-collusion nonsense, baseless impeachments (which are averring due process), the 2020 election imbroglio together with attempts to blunt State control over elections.

It is still disappointing, disconcerting, and requires focus. The idea that a Democrat majority in both chambers might turn the Supreme Court into a third political chamber, giving Democrats total power, is highly dangerous. 

So, these looming threats – believe it or not – may produce an answer. Chief Justice Roberts, no fan of Donald Trump and often “on the bubble” in key decisions, has just made clear that even he sees danger in the Democrat push. See, e.g., Chief justice calls for judicial independence amid growing political criticism of federal courts.

This Roberts statement, an appeal to constitutionalism, respect for the due process, separation of powers, and interbranch maturity, is important. 

What it indicates is that both judicial conservatives and those more liberal must see that our nation depends on the rule of law, respect for the institutions which pass, execute, and adjudicate the laws – all three.

What the Roberts statement really means is that if we will keep our heads, we can keep our Republic. If we lose them, we may lose our Republic.

More simply, if we can stop to understand – on a non-partisan basis – that we need each other, need judicial independence, we may survive. 

Many Americans have been disgruntled for good reason with Justice Roberts, who should more often be lining up with the other five conservatives, but he is right here – they all are. 

Judicial independence is vital, and it is being threatened. Our Republic needs it. It is the sine qua non, the “without which nothing.”  Democrats would be well to remember that.