Justice Alito Discusses Retirement and Court Challenges Amid Political Rhetoric
When Presidents Abuse Their Judges
The loud gain from attacking a court is political, but the quiet loss is the nation’s confidence that law, not faction, decides its fate.
A judge of your highest court, long on the bench and now of advanced years, has lately complained that he is “not pleased” with the rhetoric of presidents and other great officers when they speak of that tribunal. He observes that the language used to describe the court and its decisions is far harsher than fifteen years ago; that one president may call him one of the greatest, while branding other judges he himself appointed as unpatriotic or hollow men; and that, whatever its effect upon decisions, this continual railing contributes to the public’s declining trust. In his annoyance there is vanity, no doubt; but there is also a public lesson, which is of more importance than his wounded dignity.
In all such matters I have recommended that we follow the money, or, more generally, the advantage. When a president or party discovers that insulting judges animates their adherents, fills their coffers, and crowds their assemblies, the visible benefit is immediate and personal; the injury, being spread thin over millions of spectators, is slow, impalpable, and easily denied. Yet what is consumed, grain by grain, is that precious confidence that controversies will be decided by law and not by favour. The rulers reap an instant harvest of applause; the people, especially the labouring poor who can least afford private justice, pay in the long run with suspicion, bitterness, and the costly resort to political remedies for what ought to be legal questions.
In The Wealth of Nations I described the administration of justice as one of the three essential duties of the sovereign. The courts are the great channels through which this duty flows; if they are perceived as poisoned, citizens will dig private wells. They will seek redress not from the judge but from the demagogue, not from reasoned argument but from factional clamour. Even if the judges, as this particular one insists, remain in fact unmoved by insults from every side, it matters greatly that they be thought to be unmoved. The market for law, if I may speak thus, depends less upon the secret purity of the sellers than upon the public belief that their wares are not debased.
In The Theory of Moral Sentiments I argued that we judge ourselves, and desire to be judged, by an impartial spectator whose approbation is more precious than the loudest applause of a party. A president who publicly praises one judge as heroic while denouncing others as traitorous invites citizens to view the bench, not through the eye of this calm observer, but through the inflamed gaze of their own faction. The praise loses its worth because it is not praise-worthiness that is honoured, but obedience. The blame becomes cheap, because it is flung at those who disappoint, not the wise and virtuous, but the angry expectations of their own patrons.
You are accustomed, I see, to suspect the merchant’s petition as a probable conspiracy against the public. You would do well to extend the same most suspicious attention to the politician’s campaign against a court. When rulers discover that by branding certain judges as enemies of the people, or as the mere instruments of some party, they may frighten future nominees into greater docility, this is but another attempt to narrow competition and secure a kind of monopoly. Instead of a free market in reasons and principles, you approach a world in which only decisions agreeable to the prevailing power are treated as legitimate. The vile maxim of the masters of mankind—“all for ourselves, and nothing for other people”—needs only a judicial accent to become truly dangerous.
Yet we should not answer one species of presumption with another. Many are tempted, when the court’s reputation declines, to cure the disease by some vast, sudden contrivance; to enlarge or shackle the tribunal, to subject its members to quick removals, to harness its decisions more closely to the gusts of electoral passion. This is the spirit of the man of system, who imagines he can re-arrange the great chess-board of human society by a stroke of the pen. Judges, however, are not pieces but persons, with their own principles of motion—professional vanity, love of reputation, regard for posterity, fear of disgrace—all of which a prudent statesman will reckon with rather than attempt to extinguish.
Better, I think, is the humbler path of gradual, decent reform that works with these human springs instead of against them. Let the selection of judges be ordered so that no single moment of party ascendancy can permanently bend the court; let their reasons be published clearly, so that the impartial spectator in every citizen may see whether they sought praise-worthiness rather than applause; let presidents and ministers learn that to revile their own judges is to confess their own want of self-command. A nation’s opulence rests upon many things—the division of labour, the security of property, the extent of the market—but beneath them all lies a quieter foundation: a settled conviction that when power is checked, it is checked by law, and not by the shout of the strongest.
In all this I do not say that your highest court has merited unqualified esteem, nor that criticism is sacrilege; I say only that when those who govern discover profit in teaching the people to despise lawful judgment, they play a short game for themselves and a very long one against the commonwealth.
From the works cited
- The Theory of Moral Sentiments — The impartial spectator internalized: we judge ourselves by imagining how a fair observer would see us, and self-command is the discipline of living under that gaze.
- An Inquiry into the Nature and Causes of the Wealth of Nations — The sovereign's three duties (defence, justice, public works and institutions, including education for the common people) and the four maxims of taxation: equality, certainty, convenience, economy.