The never-ending debate over judicial power

The politics of judicial power are changing. The tide is turning—or if not quite turning, the waters are at least churning. A couple years ago, it was the progressives who were criticizing the courts and advocating structural reform for the Supreme Court. The defenders of the courts were on the right. Now the courts have become a roadblock to the administration, earning cheers from the left but losing credibility on the right. Obviously, each side likes courts best when winning. Is there nothing more to be said? While much of this is just politics, there is an important point about the design of our constitutional system beneath the ebbs and flows of the political tides.

In the first Trump administration, the courts were the site of considerable contestation, at two levels. On one level was litigation. Critics of the administration brought legal challenges that sought to stop or slow the progress of the administration’s policies. Multiple lawsuits centered on Trump’s immigration-restrictive Executive Order 13769, dubbed the “Muslim ban” by its opponents. Other lawsuits challenged Trump’s efforts to cut funding to “sanctuary cities” that did not cooperate with federal law enforcement efforts against illegal aliens, Trump’s effort to keep transgender-identifying individuals out of the military, and Trump’s expansion of the religious exemption under the Affordable Care Act.

At the second level were judicial appointments. President Trump made judicial nominations a high priority for his administration. Justice Scalia’s death months before the 2016 election turned the composition of the Supreme Court into a major election issue, and it mattered to voters. A quarter of Trump’s voters said that they wanted Trump to pick the next Supreme Court justice. But the effect reached more broadly across the judiciary, far beyond the Supreme Court. By the end of his first term, he had made 177 judicial nominations.

For liberals and progressives, what they observed over the next several years was a series of judicial decisions that seemed to be major conservative victories. Roe v. Wade was overturned in Dobbs. Affirmative action in higher education was held unconstitutional. A series of cases provided careful scrutiny of laws that burdened religious exercise—too much protection, the critics claimed. And President Biden faced a series of judicial challenges to his signature programs, ranging from immigration enforcement policies to student loan forgiveness.

Amid all of this, progressives increasingly called for a “reform” of the Supreme Court. The Supreme Court has too much power, the argument went; it has become too assertive against the executive and in the political process generally. Conservatives pushed back, pointing out that many of the reform ideas would require constitutional changes for purely partisan ends. The Biden administration recognized the Supreme Court reform was a political hot potato and tossed it to a blue ribbon committee that issued a report but produced no action. Nonetheless, court reform has remained a frequently discussed topic left of the political center.

Now, the shoe is back on the other foot. Trump has returned to the White House and faces litigation and judicial orders standing in the way of his policies. And it is the Trump administration and its friends that are vocally criticizing the judicial decisions that have gone against the administration. Many left-of-center voices have gone quiet on their criticisms of the judiciary and instead turned to praise a robust court system standing as a check on the executive.

In reflecting on how to make sense of the changing political alignments over judicial power, there are three levels at which the changes can be understood.

First, and crudest, maybe the changes are due to simple opportunism and hypocrisy. There’s doubtless some truth in the all-too-easy charge of hypocrisy. But for many people, the change is not quite fair. This leads to a second level for understanding the change—not simple hypocrisy, but an understandable effort to use tools that work. Republicans and Democrats both like to win. And, assuming each wants to win because it believes its causes are right and its policies good, there’s nothing wrong with wanting to win. Understandably, each side favors the branches that help it win. When Republicans have the White House, they promote expansive theories of executive power; when Democrats are in power, they do the same. So at this second level it’s just a disagreement about who should win, and an effort to use the most effective tools to this end.

The judiciary is not just a means to a political end. It serves a more important end—the common good, achieved through a society with a well-functioning rule of law. Our constitutional system’s success comes in part from the fact that it is a system calibrated to promote a peaceful, stable country with a functioning legal system and electoral processes. With this end in mind, the conversation that matters is how to have courts do the work they do well and not force them into roles they are poorly suited to perform.

Conservatives and progressives may not agree on the precise tools to remedy judicial overreach. Progressives have recently tended to promote structural changes like term limiting the justices. Conservatives have been skeptical of structural changes that would change the constitutional design that has functioned (generally) well for well over two centuries, but have been focused more on ways that judges can recognize limits of the judicial power.

One area where both sides seemed to have converged in recent years is criticism of national injunctions. Or, to be more precise, both have criticized judicial orders (injunctions) that attempted to extend beyond the parties to the case. Both the Biden and Trump administrations realized that the judiciary would have massive power to set national policy on a host of issues if courts can freely issue orders that go beyond the parties to the case. This is fundamentally about the courts’ place in the constitutional system. Ironically, this one area of potential convergence is in doubt now, as the administration has challenged nationwide injunctions in the birthright citizenship litigation.

The last decade has prompted lots of reflection on the place of the judiciary in our constitutional system. Sometimes the controversies have produced more heat than light. But if the conversation can prompt reflection on the strengths but also limitations of the American judiciary, it may do some good. Maybe left and right will both realize that America is best served by a judiciary that does not take on final policymaking authority for our polity. The courts are important but not all powerful.