Not Enough Respect for the Judiciary—Or Too Much? Arrogance and the Myth of Judicial Supremacy
In recent months, we’ve heard a lot of judges complain that the judiciary doesn’t get enough respect. I have a different take. I wonder sometimes if the judiciary gets too much respect.
When I was a litigator—and before then, a lawyer in the legislative and executive branches—I detested the self-importance and subordination to elite approval that have pervaded the judicial branch for as long as I’ve been a student of it. And since becoming a judge myself, I confess that my views haven’t changed. If anything, they’ve been reinforced.
I’ve watched as federal judges stood by and done nothing, as cultural elites bombarded certain Justices and judges with absurd ethical complaints. As the Justice Department refused to prosecute individuals for harassing certain Justices at their own homes. As elite law schools allowed students to disrupt events to protest certain judicial decisions.
It wasn’t until this year—following the inauguration of a new President—that the Federal Judges Association suddenly found its voice, and suddenly discovered a crisis over judicial independence.
After years of silence, it’s obvious that these concerns are not sincere, but strategic. What they’re really championing is not judicial independence, but judicial supremacy. What we’re really seeing in the judiciary is not principle, but arrogance.
In fact, arrogance is such a longstanding and pervasive problem in the judiciary that a number of terms have been coined over the years to capture the phenomenon. I’ve spent more time as a litigator than as a judge. For those of us who have been litigators, I’m sure we all have our own stories and experiences dealing with judicial pomposity.
Too many judges think that they’re better than other people. Too many judges have an overinflated view of their intelligence and their abilities. Too many judges think they know politics—when they don’t. Too many judges think they know national security—when they don’t. In short, too many judges have forgotten the virtue and value of humility. And I think a big part of the blame goes to the notion of judicial supremacy.
Law students are taught—implicitly, if not explicitly—to venerate (if not worship) judges. When the truth is that we should really regard judges more like bureaucrats. Judges and bureaucrats have at least one thing in common, under our current system. If you don’t like your Senator or your Representative, if you disagree with the President or his Cabinet, you can vote them out of office. Their jobs are subject to the will of the people.
But if you have life tenure, there’s a big opportunity, and thus a great temptation, to become arrogant—whether it’s constitutional life tenure in the federal judiciary, or de facto life tenure in the bowels of the administrative state. It’s why I’ve written about federal civil service laws as an affront to the President’s executive power under Article II of the Constitution. And it’s why I’ve written about judicial supremacy as a distortion of the judicial power under Article III.
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