For centuries the Catholic Church held Europe together socially, politically, and even economically. The Reformation destroyed that cohesion. Today, the United States of America is held together by respect for its Constitution and the rule of law. That respect is now threatened by judicial overreach which risks sparking a destabilising constitutional reformation.
The Protestant Reformation was ignited when accepted Catholic practices were carried to extremes that became abusive — most notably simony (selling church offices) and indulgences (pardons purchased to get out of purgatory), neither of which had any basis in scripture. Once begun, the Reformation was seized upon and accelerated by ambitious German princes who sought to free themselves from the financial and political influence of the pope. The Catholic Church eventually stopped selling bishoprics and forgiveness, but not before the fabric of European civilisation had been torn asunder.
Much as 16th-century Europe was anchored by respect for religious institutions, the United States is today united by respect for its Constitution, a sacred document to which citizens, civil servants, and the military all regularly swear allegiance. Unlike the constitutions of France or Germany, which have changed with the political seasons, the American Constitution has functioned effectively for nearly 250 years.
Yet nowhere does the Constitution give any one of 677 unelected district-court judges the authority to block the policies of an elected president, as they’ve been doing regularly for the past decade by issuing nationwide injunctions. These injunctions cover everyone in the country, not just those who brought the case. Yet the use of sweeping injunctions is a manufactured practice created by legislation, but not found in the Constitution. And like simony and the sale of indulgences, it has been abused by excessive use. It needs to stop.
Do not scoff at the possibility of a constitutional reformation. For centuries, the pope was a powerful and respected figure throughout Europe, until one day he wasn’t. Today our judiciary is powerful, but there is a large element of faith and mystery upholding respect for the Supreme Court. The justices reside in a building designed to resemble a Roman temple. They appear in costumes resembling the robes of a high priest and inform us that, like oracles, only they are qualified to decipher the constitution. As with the papacy, faith in the Supreme Court will quickly evaporate if it is seen to endorse the widespread abuse of contrived practices not found in scripture.
“It needs to stop before it ignites a destabilising constitutional reformation.”
The facts speak for themselves. Issuing nationwide injunctions to block executive orders has become a routine partisan tool. In Donald Trump’s first term, 64 nationwide injunctions were issued against him, of which 92% were granted by Democrat-appointed judges. In the first five months of his second term, 92% were granted have been issued against him — the overwhelming majority coming from just five judicial districts, all of which are located in liberal cities such as San Francisco and Boston. In many recent cases, the terms “arbitrary and capricious” were used to block any executive order the judge disagreed with, including policies many Americans strongly support such as deporting illegal aliens and reducing government waste.
Conservatives have played the same game: Republican judges issued all 14 of the injunctions against President Biden. As a result of all this, citizens are beginning to regard some judges as unelected politicians in robes rather than unbiased arbiters of justice. That should worry all Americans.
Last week, in a 6-3 decision, the Supreme Court dismissed three nationwide injunctions against President Trump. The significance of the verdict is not that it allowed his efforts to reinterpret birthright citizenship to proceed. That issue will return to the lower courts and be decided later. This was a landmark decision because it concluded that Congress never granted trial judges the authority to issue broad relief to individuals who had not actually brought a case before their court.
In the majority opinion, Justice Amy Coney Barrett indicated that nationwide injunctions do not align with accepted practice in either the United States or Britain. She wrote: “The universal injunction was conspicuously nonexistent for most of our nation’s history… Its absence from 18th and 19th century equity practice settles the question of judicial authority.”
It’s worth noting that the Supreme Court looked only at legislation governing court procedures. It did not address the fundamental constitutionality of nationwide injunctions. Therefore, Congress could quite easily pass new legislation reversing this decision.
Regrettably, the decision also undermined the credibility of the court’s three liberal justices. During the Biden administration, when Republican judges issued nationwide injunctions, Justice Elena Kagan stated: “It just can’t be right that one district judge can stop a national policy in its tracks.” Yet last week she voted against ending nationwide injunctions. Regardless of the legal reasoning behind her decision, it appeared to many as politically motivated hypocrisy.
Even more remarkable was Justice Barrett’s public rebuke of the court’s newest member, Justice Ketanji Brown Jackson. Justice Jackson called the majority decision of six more senior judges “an existential threat to the rule of law”. Justice Barrett, who has frequently sided with the liberal justices, essentially told Jackson that she needed to go back to law school, writing: “We will not dwell on Justice Jackson’s argument which is at odds with more than two centuries of precedent, not to mention the Constitution.” She added, pointedly: “We observe only this, that Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
Such division is worrying given that faith in many civic institutions is already in decline. Reporting by the mainstream media is routinely dismissed as propaganda. Following Covid, scientific pronouncements are no longer accepted at face value. Congress is seen as promoting partisan excess rather than national interest. Even the judiciary is no longer immune from growing scepticism. Accurately or not, many Americans consider prosecutor Letitia James and judge Arthur Engoron to have been overtly partisan in Donald Trump’s real estate fraud trial. A Colorado state court actually sought to keep Trump off the ballot only to be overturned by the Supreme Court. As a result of these and similar incidents, a new and troubling phrase has crept into the American vocabulary, “weaponised lawfare”.
Even more significantly, while the Supreme Court decision limited the use of nationwide injunctions, it still allows “class certification” through which courts can issue injunctions affecting a very broad group of people. As Justice Samuel Alito noted, this is “a potentially significant loophole” in the decision. Is there any reason to doubt that judges who were lax in the use of nationwide injunctions will be any stricter in their use of class certification? The failed plaintiffs in last week’s decision have already sought a new injunction under this provision of the law.
The decision neither enhanced the Supreme Court’s legitimacy nor resolved the issue of judicial overreach. The potential for abuse remains. Once a tipping point in public trust is reached, partisan actors, like the German nobles, will seize the issue. They will twist legitimate reform efforts to their own immediate gain, potentially undermining the entire process of judicial review. Every law school professor will tell you the courts have the authority to declare laws unconstitutional. Every one of them also knows that this authority is not found anywhere in the Constitution. It was the self-aggrandising brainchild of Chief Justice John Marshall who promulgated it in the 1803 case of Marbury v. Madison. It has been accepted because it is generally regarded as useful. So was papal infallibility.
The Protestant Reformation began on All Saints Day 1517 when Martin Luther nailed his 95 Theses to the cathedral door in Wittenberg and publicly declared that selling forgiveness of sins was a fraud. Yet Luther wanted to reform the Church, not dismember it. Pope Leo X could have defused the Reformation, and preserved the unifying stature of the Catholic Church, by ending practices many had come to regard as corrupt.
Luther’s Reformation became a political as much as a religious event. Today, the authority of district court judges has become a political as much as a legal issue. In “Federalist 47”, founding father and president James Madison noted that it is the concentration of power that defines tyranny, not the ends to which that power is used. The power of one unelected, junior trial-court judge to block the policies of a nationally elected president is an unwarranted concentration of power in the judiciary. Hopefully, last week’s decision will end the abuse of judge shopping to block executive orders, but it may not. We do not need a constitutional reformation. We need the Lutherans and Catholics on the Supreme Court to firmly rein in highly partisan district court judges from both parties before someone nails 95 Theses to their courthouse door.
