The rule of the black robes needs to end.
The next chapter of lawfare has already begun. A host of federal judges have issued orders to stop President Trump’s political appointees from implementing his policies. Judge Paul Engelmayer’s initial 4-page order against the administration temporarily prevented Treasury Secretary Scott Bessent from accessing department records.
And worse still, the Supreme Court just allowed a lower court to command the federal government to disburse foreign aid before ruling whether the president’s attempt to withhold the funds was lawful. Justice Alito’s dissent excoriated the Court’s abdication of responsibility as “a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers.”
The ensuing struggle for executive power over the next few years will determine whether presidential elections have lasting consequences.
This latest round of chipping away at the executive power builds on the last century of judicial activism. What started in the 20th century with progressive darlings on the Supreme Court like Louis Brandeis and Felix Frankfurter reached full bloom during the infamous Warren Court.
Judicial activists have turned what Alexander Hamilton thought was the “weakest” branch into the forum of last resort for implementing liberal policies that could not succeed electorally. The courts declared themselves administrators of school districts and prison systems in defense of ever loftier—and newly discovered—rights found within the “penumbras” of the Bill of Rights.
Originalists on the bench have reversed some of the worst excesses of judicial activism, sometimes delivering excellent decisions like the majority opinion in Dobbs v. Jackson Women’s Health Organization, which explicitly returned the question of abortion rights to the American people.
But focusing their political efforts on the reversal of bad decisions only reinforces the expectation that the courts are not only the proper venue for constitutional disputes—but that they are the final arbiters of the Constitution, binding the other two branches to their interpretations of the text. Both progressives and originalists on the bench therefore wield the power to amend the powers of the executive or the legislative branch without their consent. In effect, the judiciary is assuming the full sovereignty of the United States by declaring that the buck stops with them.
Friends of the judiciary defend its supremacy as necessary to curb executive and legislative overreach, but both the common law tradition and the political thought of the American Founders disprove this unwarranted claim.
Common Mishaps
Thomas Hobbes, the foremost philosopher of sovereignty, witnessed the consequences of judicial supremacy with the 17th-century jurisprudence of Edward Coke. He saw Coke’s innovative interpretations of English legal customs as pernicious to wise government and criticized them in his once-suppressed work, A Dialogue Between a Philosopher and a Student of the Common Laws of England.
Before Coke’s interpretation of the common law dominated jurisprudence in England, the judiciary operated in two distinct systems. One branch operated as courts of justice, providing for trials and appeals as we would expect today. The other branch provided what were then called courts of equity that, unlike the courts of justice, were political in nature. The lord chancellor—once the equivalent of the modern office of prime minister—presided over the courts of equity and held the power to override the King’s Bench, the highest court of justice, when the application of the law did not suit the sovereign. Coke’s jurisprudence significantly curtailed the power of the courts of equity and the lord chancellor.
In his Dialogue, Hobbes’s fictitious student of the “Common Laws of England” objects, just as many contemporary jurists might, to the need for courts of equity. The student insists that they “seemeth to me to be unnecessary, and but a Burthen to the People, since the Common-Law, and Equity are the same Law.” But Hobbes’s philosopher, a thinly veiled stand-in for himself, reminds the student that judges can err and need correction. If the interpretations and legal definitions created by jurists remain unchallenged, then bad precedents could build on top of each other.
Pushing his argument further, Hobbes’s philosopher notes that Edward Coke’s high-minded judicial reasoning can lead to legal decisions just as arbitrary as the will of the sovereign.
The philosopher asks the student whether stealing wheat from a field is a felony—an important distinction as felonies were capital crimes in Hobbes’s day. The student tells the philosopher that it depends on whether or not the thief set the stolen wheat on the ground before leaving the field. When pressed by the philosopher to justify such an absurd distinction, the student admits that the precedent arises entirely from a definition invented by Coke because “he was a Logician sufficient enough to make a Definition.”
Coke, of course, did not set down his legal definitions so that wheat thieves could only be executed on such arbitrary grounds. But Hobbes’s grain example highlights the underlying problem with judicial supremacy, especially in any common law system. Left unchecked, legal theorists will continue layering definitions, precedents, and tests on top of each other, and the results of legal proceedings will increasingly diverge from any natural understanding of equity. For example, even originalist principles for interpreting law can become so self-contained and refined that they justify reading transgender ideology into the 1964 Civil Rights Act. That is why the sovereign must retain final authority above the courts, useful as they may be.
Rule by the People, Not by Judges
The Founding Fathers also recognized the critical problem Hobbes pointed out, and framed the Constitution to both provide effective common law courts for America while insulating the sovereign—the American people—from being at the mercy of judges. Supporters of the judiciary’s supremacy may point to Hamilton’s argument in favor of life tenure for federal judges in Federalist 78 to argue for a more robust view of the judiciary’s power to review federal laws and executive actions. Doing so, however, overlooks the core of Hamilton’s argument.
Hamilton did not support a life-tenured judiciary because judges could never encroach on the legislature’s or executive’s powers. He argued that life tenure for judges is a safe policy because judges “have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Hamilton later acknowledged in Federalist 78 that judges can stray from their constitutional duty: “If they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” He did not think the executive was bound to enforce the “will” of any judge—only their reasoned, constitutional “judgment.” Hamilton recognized that separating the judiciary from the executive to enforce decisions served as a check on both branches, not only on the executive.
Thomas Jefferson’s presidency demonstrated the constitutional means available to check unwarranted judicial power. After the Federalists lost the election of 1800, they tried to build up an independent judiciary to oppose Jefferson’s new Republican administration by creating an army of judges and judicial officers during the lame duck session, hoping that their judicial bastion would stop Jefferson from reforming the federal government.
Jefferson did not take the Federalist attempts to overturn the results of the election lightly. His party quickly repealed the Judiciary Act of 1801, started denying commissions to previously appointed Federalist officials, and even (albeit unsuccessfully) impeached a Supreme Court justice.
Nevertheless, Jefferson’s campaign of judicial harassment worked. It forced the Supreme Court to issue a compromise opinion in Marbury v. Madison. Often misread as a great expansion of judicial power, Marbury really represents a political ceasefire. Chief Justice John Marshall used the decision to signal to Jefferson that the Court would not interfere in political questions: “The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion.” And until the aforementioned rise of judicial activism in the 20th century, Marshall’s compromise held.
The Trump Administration would do well to remember the legal precedents of the Founders and the dangers of allowing the judiciary to usurp the lawful authority of the American people’s elected representatives. Neither the common law tradition nor the Founders’ political theory support the idea that individual judges can place themselves in charge of deciding how executive departments are run. When faced with a brazen disregard for the limited role of the judiciary, President Trump and his lawyers should consider the legal tools used by previous presidents to curb the federal courts’ overreach.
