Disorder in the Court

SellwynThumbby Selwyn Duke2/8/17
Trump Could Simply Ignore Court’s Order Halting Travel Ban  •  Does our current status quo make our Constitution a suicide pact? Thomas Jefferson certainly said as much, warning that accepting judicial supremacy would make our founding document just that, a felo de se, as he put it in Latin.

Acceptance of judicial supremacy, by the way, is precisely why President Trump’s temporary ban on immigration from seven Muslim-majority nations is on hold. Imagine that, Alexander Hamilton wrote in The Federalist, No. 78 that the judiciary is the “least dangerous” branch of government because it “has no influence over either the sword or the purse,” yet it’s trumping the man with the sword, the president. But does it have to be this way?

No, Trump could simply ignore the court ruling suspending his ban.

Outrageous!? Unconstitutional!? Actually, it’s wholly constitutional.

In his dissent from the 2015 Obergefell v. Hodges marriage ruling, late Justice Antonin Scalia warned that with “each decision… unabashedly based not on law,” the Court moves “one step closer to being reminded of [its] impotence.” What did Scalia know about courts’ power?

That it’s basically an illusion.

Let’s do a civics quiz. Why does the legislative branch have the power to make law? Why does the executive branch (presidency) have the power to enforce law? The answer in both cases is because the Constitution grants it.

Okay, now how is it that the judiciary has the “power” to rule on law and have its decisions constrain not just its own branch, but the other two as well? How have the courts become king? Because the Constitution grants…no, stop. It’s not in the Constitution — anywhere.

Rather, this “power” was declared by the courts themselves, most notably in the 1803 Marbury v. Madison decision.

That’s right, the Supreme Court gave the Supreme Court the supreme power to have the final say on laws’ meaning.

It’s a great con if you can pull it off.

The point is that the judiciary enjoys this power at the executive branch’s pleasure. As soon as the latter says, to paraphrase Andrew Jackson, “The courts have made their decision; now let them enforce it,” that power goes bye-bye. The judiciary is reminded of its impotence.

So it isn’t just that the courts lack the sword or purse, the possession and exercise of which could simply amount to might making right. They also have no constitutional claim to judicial supremacy. In fact, the power is a violation of everything for which America stands.

Jefferson explained why in 1820, writing that “to consider the judges as the ultimate arbiters of all constitutional questions” is “a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy.” This is where we are now, and have long been — suicide-pact territory. The will of a nation 320-million strong is expressed through its duly elected representatives and laws are passed….

And then that will is thwarted by five black-robed lawyers in a central-government tribunal.

Does this sound like a government of, by and for the people to you?

As time has worn on, the judiciary has become increasingly brazen, issuing rulings more and more distant from the Constitution. This is no surprise. As Jefferson put it, “Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps.”

They even conjure up rationalizations justifying this power and privilege. For example, they long ago invented, out of thin air, the concept of the Constitution as a “living document” that can be interpreted to “suit the times.” Yet since the interpretations so often conflict with popular will, the only common thread is that they suit the judges.

These esteemed jurists then put a veneer of legitimacy on their violation of law and duty by assigning themselves an intellectual-sounding designation. “Why, we’re not constrained by a 200-year-old piece of parchment like those knuckle-dragging originalists,” they say, “We’re ‘pragmatists’!”

To understand how outrageous this is, consider an analogy touched on by Chief Justice John Roberts when, during his confirmation hearings, he said his job was only “to call balls and strikes.” Expanding on this, judges can in fact be thought of as baseball umpires, while the game’s ruling body is the legislature and the rule book is the Constitution. Now, what if an umpire considered the rule book living and said, “With the great pitchers in these times, three strikes are insufficient; I’m giving the batter four strikes”? What if he then stated, “I’m not abdicating my duty. I’m a pragmatist!”

Would this be taken seriously? Or would he be laughed off the diamond?

Obviously, it’s the job of the ruling body to alter the rules if necessary. Likewise, there is a lawful way to make the Constitution “live”: the Amendment Process. It’s long and difficult, and this ensures that before a change is made, a majority of the people agrees. This brings us to the problem with it — from the judiciary’s perspective:

Judges can’t control it.

So they usurp the people’s power with a wink and a nod. They must be stopped.

There’s more than one way to do this. Another little known fact is that Article III of the Constitution grants Congress the power to limit the jurisdiction of federal courts below the Supreme Court and the appellate jurisdiction of the latter. In other words, Congress could simply have prevented federal courts below the SCOTUS from ruling on immigration (and other issues) to begin with and the SCOTUS from reviewing lower-court decisions on those issues.

Congress also has the power under Article III to eliminate any and every federal court, except for the SCOTUS. So it could have made the U.S. Court of Appeals for the Ninth Circuit — a bench of fools now reviewing Trump’s immigration ban — disappear long ago.

Yet this would require that our cowardly politicians take a real stand on a contentious issue. They’d rather that judges, who don’t have to be re-elected, make the tough decisions. They can then pretend they did all they could and say, “The courts have ruled. The law’s the law!”

So is it any surprise the courts are going rogue? “Absolute power corrupts absolutely,” as Lord Acton warned. And how can we have a balance of power among the three governmental branches, as the founders intended, when two branches refuse to exercise their power?

I’ve heard it said that if the president ignored the courts, it would spark a constitutional crisis. Newsflash: When a branch of government is continually trampling the rights of others and violating the Constitution, we’re already in a constitutional crisis. Showing the judiciary its impotence isn’t the disease — it’s the cure.

Only power neutralizes power. It’s shocking how we’ve betrayed the letter and spirit of our nation’s founding and have allowed the courts to run amok. We can continue drinking the judicial-supremacy Kool-Aid and committing national suicide, or we can drain the swamp infested with black-robed tyrants. It’s impotence for them — or irrelevancy for us.

Selwyn Duke (@SelwynDuke) has written for The Hill, Observer, The American Conservative, WorldNetDaily and American Thinker. He has also contributed to college textbooks published by Gale – Cengage Learning, has appeared on television and is a frequent guest on radio. His website is www.SelwynDuke.com. • (681 views)

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15 Responses to Disorder in the Court

  1. Timothy Lane says:

    I’ve been pointing out for years that we increasingly have a very tight oligarchy of black-robed tyrants. Judges such as Robart remind me that I was born in Virginia, whose state motto is still “Sic semper tyrannis” — though I also remember that I’m a cousin of Abe Lincoln. I don’t like defying the courts, but neither do I like judicial supremacy. And when they base their decisions on their politics rather than the law and the Constitution, they invite increasing disrespect, and an increasing desire to see them get their comeuppance. A “living Constitution” is in fact dead.

  2. Kung Fu Zu Kung Fu Zu says:

    I believe I wrote this piece around 2006-2008 and Brad was good enough to publish it in 2013.


    My views have hardened on the subject and I believe the out-of-control judiciary must be neutered.

    As to the idea of a living Constitution, I use the poker analogy.

    What would you say if we were playing 5-card stud together and during one hand you had three aces and I had three deuces but I claimed that the rules had changed and that deuces not aces were high?

    Then in the next hand I had three aces and you had three deuces and I changed the rules back to where aces are high? Such is a living constitution.

    • Timothy Lane says:

      I recall on old Huckleberry Hound cartoon with a medieval setting in which the various knights had to draw cards, with high card having to do the mission that was the basis for the story (the details of which I don’t recall now). Huck has a fairly low car, but the other knights keep drawing even lower ones. Then one says he has a “one”, and Huck momentarily think he’s all right — that would be an ace, which is the top card. But it turns out to be an actual “one”.

      • Brad Nelson Brad Nelson says:

        I’ve had opportunity to make reference to Heckle & Jeckle but never thought Huckleberry Hound would ever enter the picture.

    • Brad Nelson Brad Nelson says:

      I would say I’d let my six-shooter do the talkin’.

      • Timothy Lane says:

        This is the danger of this sort of misconduct, including liberal rioters (if they ever did so in a conservative community). Or, better still, a gun carrying a larger clip than 6 bullets. How about one of those 30-round magazines liberals complain about? You could get a lot of troublemakers with that.

  3. Rosalys says:

    Yes, Trump should ignore the court ruling, but probably, he would immediately be impeached for “breaking the law.” Maxine Waters is on record for itching to do so. Considering that the American populace is so ignorant, the left (and that includes way too many republicans) could very likely succeed.

  4. Steve Lancaster says:

    A concise well written statement of Libertarian values. I fear those you bash as Libertarian will not agree, and will continue to riot on the streets. However, the Constitutional argument Mr. Duke makes is solid.

    Perhaps the time will come when Marbury v Madison is ignored, and the 16th and 17th amendments are repealed. Hope springs eternal, but don’t hold your breath.

  5. Stuart Whitman Stuart Whitman says:

    On many days it seems this country is over. But clear writing such as this restores my faith. Thank you Mr. Duke.

  6. pst4usa says:

    Very well said, or written as the case may be.

  7. Anniel says:

    What needs to be said. I felt my heart beat with gladness when I read the article this morning. Thank you. And Maxine Waters be damned.


    While I certainly agree with the main thrust of Selwyn’s article and most of the comments here, once again I must defend the principle of judicial review and distinguish it from judicial activism. It is not true that the Supreme Court made up the idea of judicial review out of whole cloth in Marbury v. Madison; the doctrine had been practiced by the state courts for 40 years by that time and even earlier by the English courts. Nor is it unsupported by reason, for the very existence of a written constitution supposes that it is a superior law to ordinary legislative acts (and our Constitution explicitly makes this statement), and that means that a legislative act that contravenes the relevant constitution(s) must be considered null and void. Considered by whom? Under many conditions, by the courts.

    This does not mean that the courts are the absolute last word on constitutional interpretation, or that they may substitute their policy preferences under guise of “judicial review” which of course is what happened in such notorious cases as Dred Scott, Roe v. Wade, Obergefell, and now State of Washington v. Trump, and is properly decried as “judicial activism”. But consider the result if the courts cannot exercise judicial review: any act of Congress, passed with or without the President’s consent, must be held to be binding law.

    That would mean that when a monstrosity such as Obamacare is enacted, we the people have two alternatives: obey a tyrannical enactment or openly resist the government. Under such circumstances we will have tyranny or revolution before very long (and in fact that’s just about where we find ourselves given the inactivity of the courts most of the time). Far better to have recourse to the courts, assuming they’re prepared to do their job and strike down unconstitutional acts.

    What we see is that any power can and will be abused, and when Leftist Democrats (the only kind these days) get into office, whether legislative, executive, or judicial, they will abuse the powers of that office, and this is the real problem. Progressive judges use the cover of judicial review to strike down acts and actions they do not like, then fail to act to strike down the likes of Obamacare (recall that Chief Justice Roberts’ disappointing vote in favor of Obamacare resulted primarily from his abdication of judicial review). The result in each case is the advancement of the progressive agenda, most of which is actually the result of inactivism rather than activism (think of the gun control acts and welfare schemes that should have been declared unconstitutional over the years). The current crisis, for such it is as Selwyn states, was precipitated by Democratic Party operatives in robes abusing their power to reverse the results of the election and install the immigration policies of Barry Obama and Hillary Clinton. This point cannot be overstated.

    So should Trump disobey the unlawful court order? I would suggest that he threaten to do so if there is no alternative, supported by a Congressional threat to remove the courts’ jurisdiction over his immigration executive orders (Selwyn’s idea, but I came up with it independently). This would give the Supreme Court a strong incentive to do the right thing and overrule the 9th Circuit rather than be rendered impotent. At the very least he needs to explain to the people that the courts are usurping both legislative and executive powers before he takes the step of ignoring the court’s order. And the Senate needs to confirm Gorsuch to the Supreme Court a.s.a.p. since his vote might be needed to overrule the despicable lefties of the 9th Circuit (right now I’d guess Trump would win 5-3 or lose 4-4).

    • Timothy Lane says:

      My understanding is that he plans to write a new order that will take care of the slip-ups that provided the excuse for the juristocrats’ abuse of power. If they persist in this abuse, he may have to challenge them more directly — but he’d better realize that the synoptic media will be on the juristocrats’ side no matter the law.


        Yes, the Democratic media, which ignored Obama when he chose to disregard court orders regarding the issuing of drilling permits, will join Democratic politicians in a chorus of denunciation should Trump have to openly disregard the court’s order. As to the issuance of a new executive order, a strategy favored by Rich Lowry at NR and some others, the problem with relying solely on this approach is that Rogue Robart and other Democrats in robes will never accept any modified order that still does any good (i.e. that blocks likely Muslim terrorists). I recall Robart going so far as to say that the vetting was thorough enough(!) – an incredible usurpation of the Executive and Legislative powers.

        Unless these Democratic Judges are defeated one way or another, my fear is that Robart, after issuing a permanent injunction, will refuse to hear any further arguments from the Trump Administration on the revised EO’s on the grounds of res judicata (the civil equivalent of double jeopardy). In other words, if Trump doesn’t fight and win on his original EO, he may have no chance to win with any other.

        Of course, it might make sense to issue another EO while continuing to fight for the original one. But this is far less a case of “slip-ups” by the Trump Administration than media reports (and analyses by “conservative” commentators who don’t much like Trump) would indicate. Robart had to accept ludicrous grounds for standing (that the states would suffer adverse economic consequences) and then skirt the issue of the constitutionality of the relevant statute in order to drag in some preposterous rationale from left field (in the double sense) for finding Trump’s order illegal. Anyone that determined to impose the Obama-Clinton immigration policy by fiat will not be deterred by “cleaning up” the order so that, for instance, green-card holders are not affected.

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