A Court That Won’t Fight for Its Own Authority Will Lose It

A justice of your highest court, Samuel Alito, now 76, tells the public that retirement is something a man his age must consider every term, and that he had already thought of stepping down and chose not to. At the same time, he complains of a surge in emergency appeals and of harsh presidential rhetoric that he calls “offensive,” whether it comes from Donald Trump, Joe Biden, or Barack Obama. One president praises him as “one of the Greatest of All Time,” then denounces other justices he appointed as “unpatriotic” and “merely a shell of their original selves.” The justice replies, in substance: our rulings are unmoved by this noise, though public trust decays. In that contrast lies the whole disease.

When I wrote in The Prince, as translated by W. K. Marriott, that one must look to the “effectual truth of the thing rather than to the imagination of it,” I meant precisely this situation. The justices say rhetoric does not touch their decisions; perhaps that is true in the narrow sense that no vote changes because a president shouts. But the effectual truth is different: they themselves admit that such language helps drive down trust in the court. A power that depends on consent and habit cannot treat declining trust as an externality. To say, “It offends me but it does not move me,” is to speak like a man, not like an institution that must think in decades. The Romans feared not insults, but precedents.

Consider the justice’s retirement calculus. He tells one outlet he is “obviously” there for another term, and another that retirement is a live question every year. Meanwhile, some conservatives fear that if the Senate changes hands in the next elections, the president’s chance to seat another like-minded justice will fall to “somewhere less than zero.” Here is survival thinking, but not of the court, rather of a faction within it. In founding moments or decayed republics, this is unavoidable; I saw the same dance around Florentine magistracies. Yet the more openly a court’s composition is talked of as a prize contingent on a single Senate election, the more its authority becomes hostage to the same electoral passions it is meant to withstand. The first imperative is to maintain the state, not the current majority.

In my Discourses on Livy, in Ninian Hill Thomson’s translation, I praised Rome for channeling conflict between the great and the people into formal tumults that strengthened liberty. Your court now sits in the middle of such a conflict but pretends it is above it. A president may call one justice a champion and others traitors. The justice says this is “offensive” but insists that rhetoric is one thing and rulings another. This is a dangerous middle course. Either you treat such attacks as ordinary noise and ignore them fully, or you answer them institutionally—with public rules, norms, and collective responses that defend the court as a whole. To half-denounce the language while doing nothing to alter the incentives that produce it is to invite more of the same, while teaching the people that the court will not fight for its own dignity.

Recall what I said of fortune in The Prince: she is like a raging river that overwhelms those who failed, in fair weather, to build dykes and barriers. Now you have a flood of emergency appeals and a storm of partisan speech. The justice laments that the court “can’t stem” this rise. I do not believe such impotence. When I hear a magistrate say he cannot control his own docket, I hear either lack of imagination or lack of will. Virtù in this case would mean altering procedures, speaking in one voice about abuse of emergencies, and, if necessary, using the court’s powers to punish bad-faith litigants or executives. If you leave the river its new channel, do not be surprised when it washes away your foundations.

There is also the matter of fear and love. In domestic politics, I once argued it is safer to be feared than loved, provided one avoids hatred. A court cannot and should not seek fear in the same manner as a prince, but it likewise cannot live on love alone. When a president publicly exalts one justice while denigrating others, he tries to turn the court from a single, formidable edifice into a market of reputations he can bid up or down. The justices, by answering only as individuals with wounded honor, help this project. They must instead insist, by word and coordinated behavior, that an attack on one is an attack on the court’s role, and that attempts to personalize justice will gain no practical advantage. Severity toward such tactics, if well used and evenly applied, wounds the few and guards the many.

You will ask: what is the alternative, that judges descend into the political mud? No. The alternative is that they remember what I called a ritorno ai principii, a return to first principles. A free people, under good laws, is more constant and wiser than any prince; but when the organs that give those laws form are seen as just another battlefield for factions, the people are tempted either to despise them or to capture them. Your court must therefore assert itself not as an ally of one side or another, but as a jealous guardian of its own procedures, pace, and public image. That means coordinated public explanation of its work, firmer rules on emergencies, and a conscious refusal to let retirement and appointment be narrated as partisan spoils. In storms like this, quiet dignity is not a defense; it is a surrender dressed as virtue.

uncertainty_note: I write from sparse reports, not intimate knowledge of your court’s internal counsels, so I judge by visible effects and must leave open what prudence or conflict may be hidden from view.