In a shameless display of disrespect for judicial review and our Constitution, an attempt to undermine “separation of powers” and intimidate Supreme Court justices, some Democrats – unhappy with recent decisions on abortion, affirmative action, presidential spending, and First Amendment rights to speech and religion, have begun trashing the Supreme Court.
Nothing could more damaging, anti-democratic, thoughtless, reflexively political, and ultimately counterproductive to our constitutional republic than attacking the legitimacy of counter-balancing federal branches, in this case, the Supreme Court.
As James Madison, notetaker at the Constitutional Convention, Secretary of State, and our fourth president, wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Nevertheless, that is what an increasingly radical, anti-institutional, extremist Democrat Party appears interested in achieving. Cheerleading for anarchy, lawlessness, disrespect for leading institutions, and concentration of power, they have lost perspective on “separation of powers.”
What has begun to happen, as Democrat leaders resist well-reasoned rulings by a 6-3 majority, which has returned the Court to interpreting the Constitution using text, history, and restraint rather than political activism, is the rise of court-bashing, belligerence toward judicial review.
The whole idea is dangerous. As the British paragon of legal wisdom, Montesquieu, wrote succinctly and with conviction: “There is as yet no liberty if the power of judging be not separated …from legislative power and the executive.”
Moreover, in the 85 Federalist papers, which explain the most promising and dangerous aspects of the newly configured democratic government, separation of powers is viewed as vital.
Jefferson, for example, earlier wrote about how the three types of power – legislative, executive, and judicial – had to be kept separate. “The concentrating these in the same hands is precisely the definition of despotic government.”
Ironically, while political conservatives tend to be more restrained – respectful of constitutional language – they never sought to end, intimidate, punish, threaten or impeach liberal justices, or pack the Supreme Court with political puppets, when decisions did not align with their values.
Yet that is exactly what the Democrat Party now seems intent on doing, effectively running down or delegitimizing fundamental institutions of the republic, as described by the first three articles of the Constitution.
The audacity of attacking the Supreme Court’s members personally and legitimacy of the institution, seeking to intimidate justices, their families, and litigants – as in 2021 after Dobbs – for not abiding a leftist agenda is genuinely frightening. It is also profoundly anti-American.
This is how communist, fascist, extreme socialist, theological, dictatorial, and autocratic or strongman politics works. It demonizes, threatens, promotes fear in the public, intimidates those who oppose it.
Some – highly irresponsible – Democrats are now consciously whipping the public mind into a state of indignance, anger, passion, and growing irrationality, urging them to abandon responsible, respectful, legal behavior in favor of lawlessness, pushing figuratively and literally – mob behavior.
Can a rise in political violence be far behind? When leading members of Congress disparage the High Court, push vengeance, investigations, impeachment, and court-packing to reverse judicial review, take aim at a constitutionally counter-balancing institution – where are we going?
When a president of the United States, enmeshed in political corruption, calls the opposing party “enemies of the people,” invades his predecessor and chief challenger’s home, indicts and arrests him –then ignores a Supreme Court decision blocking executive vote- buying, calls the High Court “not … normal,” and walks away – where are we headed?
Let us be crystal clear: The Supreme Court – and judicial review – involve questioning what state and federal institutions do, reviewing in a thoughtful, non-political, textually constrained way whether the decisions they render are, among other things, consistent with the Constitution.
What does this mean? It means the High Court will often be critical of other institutions, as it has always been, urging them to abide the text, principles, and intent of the Constitution and statutes, in some cases noting they can move an idea forward – but only legislatively, or pursuant to the law.
What has changed – and noticeably – is that political leftists, now in charge of the Democrat Party – have begun to advocate an “ends justify means” approach to wielding power. They apparently – or many in their ranks – no longer care about what the Constitution says, about limits on power.
Not only would traditional Democrats, Harry Truman to John Kennedy, no longer recognize their party, but they would be fearful of it. What we are seeing, in historical context, is an abnegation, a straightforward rejection of the founding documents, principles, wording, and binding force.
What rational minds – of any political stripe – that care about law, accountable government, liberty and equality must do is to stop the hysteria, and stop the drift toward political violence, most recently promoted by Democrats in the form of attacks on the Supreme Court.
In short, to attack the legitimacy of our Constitution and Supreme Court is to seed political violence in the name of leftist politics. That is fundamentally wrong, profoundly anti-American.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
