'Neither Force Nor Will, But Merely Judgment': The Constitutional Necessity of Judicial Independence
An independent judiciary is essential to that which makes America great. Without it, constitutional guarantees are reduced to parchment barriers, vulnerable to political expediency and executive frustration.
That is – once again – my conclusion as we watch the recent friction surrounding the Supreme Court’s emergency order blocking the administration’s attempt to enforce new mail-in ballot regulations weeks before an election. Obviously disappointed by the Supreme Court’s ruling, members of the Executive Branch are publicly lamenting that jurists they appointed fail to deliver “desired political outcomes,” and assert a right to pressure the high court in moments of administration frustration. In our view, this saga again betrays a dangerous misunderstanding of the separation of powers. This posture reduces a lifetime constitutional appointment to a transactional contract of personal loyalty.
The separation of powers exists precisely to prevent this concentration of power. As James Madison wrote in Federalist No. 51, the "great security" of our system consists of those who head each branch of government having "the necessary constitutional means and personal motives to resist encroachments of the others." A Supreme Court Justice is not an agent of executive policy, but an independent guardian of the Constitution. To preserve that independence, Madison noted that members of each branch must not be dependent on the others.
In Federalist No. 78, Alexander Hamilton observed that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution," because it possesses "neither FORCE nor WILL, but merely judgment." While the Executive "not only dispenses the honors, but holds the sword of the community" and the Legislature "not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated," the judiciary has no influence over either. It cannot take active resolutions; it possesses only the power of legal reasoning.
Because the Supreme Court has no enforcement machinery of its own, public confidence is its primary capital. When executive rhetoric chips away at the confidence in the bench because a decision frustrates administrative agendas and political priorities, it subverts the very foundation of the rule of law. When Supreme Court Justices rule against a president who elevated them, they do not exhibit disloyalty; they confirm that our constitutional safeguards remain intact.
Originally posted on LinkedIn. View here.