“In a democratic republic, the organs of state are separate and may even at times work at cross-purposes, with one acting as a balance for the other. In an autocracy, these organs must be deprived of their autonomy …”
These words are taken from the preface of “The Sons of Caesar: Imperial Rome’s First Dynasty” by Philip Matyyszak, one of the A-list historians in my uncontrollable reading pile. The book in a nutshell is a history of how and why the Roman Republic, one of the prototypes for our American republic, succumbed to autocracy under a military dictatorship of the Julian-Claudin clan of emperors in the first century A.D.
As an avocational student of history, I see frightening parallels between ancient republican Rome and America’s current events: Incitement of urban mobs to violence, attempting to disrupt constitutional processes, prosecution of officeholders upon leaving office and, the point of this essay, the attempt to overthrow the very constitutional checks and balances designed to safeguard democracy.
The goal of this intemperate and dangerous anti-court rhetoric is to destroy the independence of our court system, put in place to protect our liberties against government overreach and usurpation of illegal power. Its independence is also threatened by proposed legislation to alter its composition through court-packing schemes, term limits for justices and even impeachment proceedings.
This is not an entirely new phenomenon. The Warren court was not popular among us conservatives during my formative years. More than a handful of decisions by the courts of Warren, Burger, Rehnquist and even Roberts were deemed constitutionally wrong and politically outrageous at the time. Yet the public outrage never reached the level of vitriol we are seeing now. The private homes of justices were not picketed, the personal ethics of justices or their spouses were not publicly challenged and there was no orchestrated campaign by those of the other two branches to delegitimize the Court.
Things have changed and not for the better.
Governmental agencies and officials naturally lust for more power. Lord Acton knew whereof he spoke when he warned against corruption when unchecked power is grabbed. The courts, at least those in a representative democracy, are charged with enforcing the limits placed on governmental entities, limits between them under the separation of powers doctrine and between the power lusters and the citizenry.
A federal district judge in Texas saw this clearly when he ruled recently that the federal law prohibiting home whiskey distilling was unconstitutional. “Indeed, the Constitution is written to prevent societal amnesia of the defined limits it places on this government of and by the people. That is where the judiciary must declare when its coequal branches overstep their Constitutional authority.”
There is a reason that federal judges are not subjected to election and reelection campaigns. Article III of the Constitution states that federal judges “shall hold their Office during good Behavior.” During good behavior does not mean being politically popular per opinion polls, let alone pandering to the mob. And it absolutely does not mean they are being frog-marched to politically acceptable decisions by dictates from Congress or the White House.
Alexander Hamilton, in Federalist #78 and following, made the case for an independent judiciary. His focus was on preserving the rights of “the people” even when the legislative branch usurped them in violation of the Constitution. Congress may be popularly elected but it does not have an absolute grant of power. Hamilton wasn’t alone in advancing this argument. His partner in the Federalist Papers, James Madison, wrote several explaining the separation of powers doctrine and the equality of the branches.
So how “bad” is the Roberts court in the progressive eye? Horrific, if one were to believe the rhetoric blasted from the Beltway. But what are the facts?
Several weeks ago the Wall Street Journal analyzed the Roberts Court’s record of decisions. About one-quarter of the decisions were unanimous but the 6-3 decisions were not always from the same six justices. The most conservative federal circuit court was overturned more often than the most liberal. Textualism and originalism were the common theme, and not just from the Trump appointees.
Whoops. As Patrick Moynihan was fond of saying, “You are entitled to your opinion. But you are not entitled to your own facts.”
The simple fact is that the Supreme Court must perforce be unpopular with the president and the majority party in Congress or it is not doing its job. It is the Dutch boy’s hand in the dike. If its finger is yanked out, who knows how much damage the flood will cause to our liberties.
Actually, history instructs us. Just look to first century Rome.
Mark Franke, an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne. Send comments to [email protected].
