Trump Criticizes Supreme Court Over Mail-In Voting Ruling
When a President Treats Judges as Employees
A ruler who complains that judges are “not the people I interviewed” mistakes the nature of their office and edges his power toward the arbitrary authority of being judge in his own case.
I begin with the reported fact that a president, dissatisfied with a ruling that upheld a block on his mail‑in voting plan as unlawful, has delivered what is called a blistering attack on the court, and has said of the justices in the majority, “these are not the people I interviewed” to serve. I meet here no obscure doctrine about trade or distant colonies, but a plain contest over who decides what the law is. One party holds the sword of executive power; the other, though lacking force of arms, holds the authority of judgment in controversies about law. The quarrel, therefore, goes to the heart of political power held on trust.
When I wrote the Second Treatise, I defined political power, in paraphrase, as a right of making laws with penalties for the regulating and preserving of property, only for the public good. From this follows, first, that no man is born to rule; all are naturally free and equal. Secondly, that those who are entrusted with power are bound by standing rules, by the law of nature, and by the end for which any authority could ever be consented to, namely the preservation of lives, liberties, and estates. Thirdly, that the several powers — to make law, to execute it, and to judge controversies — are distinguished so that no one hand may be both party and judge in its own cause.
A court that upholds a lower judge’s block upon a presidential plan, declaring that plan unlawful, appears from the scant facts before me to act within this judicial province. The judges stand, or ought to stand, between the citizen and both prince and parliament, applying known rules so that no man is left to the bare discretion of another’s will. If they err, the error is to be shown by argument from the law of nature or from the established constitution, not by resentment that they disappoint the expectations of him who once interviewed them. For a president may propose names, and the people by their forms may consent to their elevation, yet the office they then bear is not a private service but a public trust.
That phrase, “not the people I interviewed,” therefore requires close handling. Does it mean only that the president misjudged their understanding of the law, and now finds their reasons weak? Such criticism, offered with reasons, belongs to every citizen. But if it means that judges are bound to shape their judgments to the hopes of the ruler who advanced them, then the very nature of impartial judgment is denied. The judge becomes, in effect, a subordinate officer of the executive, and the separation that guards the people from arbitrary power is quietly dissolved. One need not love any particular decision to see that this would be a dangerous bargain.
In my Essay Concerning Human Understanding, I urged that assent be proportioned to the evidence. The same rule applies to political complaints. A president who calls a decision “bad” offers nothing more than his displeasure, unless he join to it a clear account of how that ruling contradicts standing law or the law of nature. The burden of proof lies always upon power, not upon liberty. Men left in the state of nature are under reason’s law; they submit to government only on condition that it renders their condition safer and more secure, not that it subjects their civil interests to the fluctuating temper of a single will. To call a judicial block unlawful is one thing; to show it so is another.
Yet I will not deny that courts, too, may betray their trust. If judges, under pretense of law, destroy the people’s property in that broad sense of lives, liberties, and estates; if they join themselves habitually to one faction; if they refuse all remedy for manifest injuries; in such a long train of abuses they may set themselves against the very end of government. In that case they would forfeit their claim to obedience, and the people would be left to the appeal to heaven against force. But nothing of this kind is established here. I see only a single dispute about one voting plan, declared unlawful by a judge and that judgment upheld by a higher court, and then met by personal reproaches from the disappointed ruler.
What then should a free people learn from such a moment? Not to revere every court as infallible, for men in robes err like other men. Rather, to watch closely whenever an executive speaks as though judges were his instruments, selected to ratify his designs. The magistrate’s care is civil interests; the court’s care is the application of settled rules to particular causes; neither has authority over belief or over bare will. A president’s displeasure, expressed in sharp words, does not yet dissolve the legitimacy of judicial authority. It does, however, reveal how quickly power, when crossed by law, is tempted to treat law as a servant and not as its master.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — The state of nature as analytic baseline: perfect freedom and equality under the law of nature, so that government must be shown to improve on that baseline for everyone who leaves it.
- An Essay Concerning Human Understanding — Assent must be proportioned to the evidence; believing beyond one's proofs is a failure of duty, not a mark of faith.