When Presidents Treat Judges as Employees

We are told that a president proposed a scheme respecting mail-in voting; that a lower judge found this plan unlawful and blocked it; and that the highest court of your union has now upheld that block. The plan falls; the judgment stands. So far, this is no more than the ordinary operation of law. What renders the incident remarkable is not the decision, but the president’s response: a public denunciation of the ruling as a “bad decision,” and, more curiously still, a complaint that the judges who joined it “are not the people I interviewed” to serve. Here we pass from lawful disagreement into a more instructive impropriety.

Whenever rules of voting are altered, one should first ask what I once urged you to ask of commercial regulations: who visibly gains, who invisibly pays, and by what distortion of the price—or in this case, the voice—system. A greater facility of voting by post may, on the face of it, widen the market of political participation, much as better roads enlarge the market for goods. When the citizens most pressed by labour or distance may yet cast a ballot, the commonwealth gains information about its own mind. The division of labour in the council of the nation improves when more of the governed can choose their governors.

Yet the same act which is good in the abstract may be pernicious in the particular manner, motive, or moment of its adoption. When I advised the most suspicious attention toward merchants petitioning for regulations, it was not that merchants are monsters, but that they are men; and men, when they frame rules in which they themselves are immediate parties, are seldom impartial. So too with rulers who promote sudden changes in electoral forms upon the eve, or under the shadow, of contests in which they are themselves deeply engaged. We must ask whether the proposal extends the franchise for the sake of the public, or only arranges the lists for the advantage of the proposer.

Here, however, the courts—first a single judge, then the supreme tribunal—have examined the plan and pronounced it unlawful. In The Wealth of Nations I described among the sovereign’s essential duties the exact administration of justice: not the favouring of this party or that, but the steady maintenance of known rules, by known judges, in known forms. These judges are not hired advocates; they are not, or ought not to be, the president’s agents, engaged to pursue his project as a merchant’s factors pursue his trade. They are officers of the law, bound not to the man who nominated them, but to the constitution whose guardians they have solemnly professed themselves to be.

It is therefore of some consequence that the president’s complaint is not that the court reasoned ill, or misconstrued a statute, but that the judges have failed to act as the persons he believed he had engaged. The rebuke is not addressed to their understanding, but to their fidelity as if to a disappointed employer. In The Theory of Moral Sentiments I endeavoured to show that we judge behaviour through the eyes of an impartial spectator—an imagined, well-informed bystander who asks whether the agent prefers what is praise-worthy to what is merely praised. That spectator will readily allow a president to protest a judgment, but will look very coldly on one who suggests that the crime of a judge is to remember his oath rather than his patron.

Every government depends, more than its statutes avow, upon the quiet belief among the people that certain offices are not for sale, and certain persons are not any man’s creatures: the judge on his bench, the juror in his box, the citizen with his ballot. If these appear to be but pieces upon the great chess-board of society, moved at pleasure by some superior hand, their decisions lose their authority even when they are in fact independent and just. The visible benefit of a harsh presidential outburst—a momentary gratification of resentment, a rallying of ardent supporters—is small and fleeting; the unseen cost, spread across millions of minds, is a creeping suspicion that no umpire is impartial, no tribunal final, no rule stable.

Self-love, under rules of justice, may lead individuals as by an invisible hand to promote the general good; but when rulers teach their followers that justice itself is only a mask for personal loyalty, those rules are loosened, and the same self-love becomes a principle of faction and disorder. I am not insensible that courts may err, nor that legal forms may obstruct necessary reform; my own times furnished examples enough. Yet the reformation of defective institutions is a task for patience, for public reasoning, and for laws, not for the petulant chastisement of judges as if they were truant servants. A president who insists on that confusion may win a moment’s shout, but he spends, almost without knowing it, the very credit on which his society’s peace depends.