As many of you undoubtedly know, the federal government is made up of three branches: the executive (the chief executive being the president), the legislative (congress), and the judicial (led by the Supreme Court). When we speak of these branches, we often say that they are “co-equal,” meaning that none is supposed to be more powerful than the other, and that each is supposed to treat the others with respect.
The truth, however, is that the branches are not equal. By far, the executive branch is the most powerful, and this is for three reasons.
First, unlike the other two branches, its decision making ability is consolidated into one person, the president, making it able to take quick and decisive action – a necessary and useful trait in time of war.
Second, the president is the commander-in-chief of the military meaning that, in theory at least, he or she has the power to bend the other branches to his will by literally holding guns to their heads. Although this has never actually happened in American history (yet), don’t think that the other branches aren’t aware that it could.
Third, the fact that the executive holds all the guns also means that it doesn’t have to follow the orders of the other two branches, as when Andrew Jackson famously refused to acknowledge the Supreme Court’s ruling that he didn’t have the power to forcibly remove the Cherokee people from Georgia to Oklahoma (“the Trail of Tears”), and did it anyway. “[Chief Justice] John Marshall has made his decision,” he’s reported to have said. “Now let him enforce it.”
Congress is the second most powerful branch because it holds “the power of the purse.” Simply put, while the president commands the military, congress funds it. If the president attempted to use the military in a way that congress disapproved of, congress could simply undermine that action by revoking the military’s ability to get paid.
And what of the judiciary? Without the power to wield either guns or money, what power does it have? None, other than its credibility.
The Supreme Court’s power has always derived from the people’s respect for it. Its members are presumed to be learned, thoughtful and impartial, and so their decisions carry a certain esteem.
But that will remain true only for as long as the people believe that the court is impartial. And that is one of the reasons why we are living in such a dangerous time.
Public respect for the court has been plummeting since Bush v. Gore, and it is now to the point where nobody truly expects impartiality from the court anymore. Instead, we all expect the Justices to decide cases according to their political preferences. Time and again, the Justices have met that expectation.
This is very bad, because a court that does not command the respect of the people has no power at all to function as a check on the other branches. “Now let him enforce it,” President Jackson said. Justice Marshall couldn’t enforce it, and 4,000 people died. In the end, it is always the citizenry that the court ultimately relies upon for its validity. But trust in the court has been lost. How can it be regained?
It seems pretty clear to me that our current president is on a collision course with the judiciary. He will be indicted and the court will soon be asked to decide the extent to which those indictments can stand. In anticipation of this, President Trump is packing the court with loyalists. The damage to the court’s reputation would be incalculable if these loyalists were to absolve him of his crimes.
Thus, it seems obvious to me that any judge worthy of the title ought to recuse themselves from deciding the fate of the very person who nominated them to the bench in the first place. Judges often obsess over the mere appearance of impropriety, and rightly so. Are the people on the court today so lacking in character that they wouldn’t care to avoid what all would recognize as actual impropriety?
We do not have to accept such a court. Let us watch it closely. Let us demand impartiality from it. When the president’s case makes it to the court’s docket, let us demand that Justices Gorsuch and Kavanaugh remove themselves from it.
The Supreme Court has gotten a pass for too long. We have the right to demand that it do its job and stop all the politicking. Our government’s integrity is only as strong as that of the weakest branch.