A Constitutional Thanksgiving: Why We Should All Give Thanks for the “Least Dangerous Branch”

As families gather this year for our annual holiday feast, there remain many things for all of us to give pause and thanks for in our lives. Our friends, family, and faith remain central to this holiday. So is our freedom.  Despite economic, political, and social problems, we remain a free and prosperous nation committed to core values of individual rights and self-determination. Indeed, more than any year, there is particular reason to give thanks to the most besieged and resilient part of our constitutional system: the courts. Despite attacks from the left and right, our court system remains a bulwark against political impulse and excess. The Supreme Court in particular has faced unrelenting attacks ranging from a reprehensible leak to an attempted assassination of a justice to calls for court packing. It has stood its ground just as James Madison and other Framers had hoped in their original design of our constitutional system.

This week, former President Donald Trump became the latest politician to level a broadside against the Court after it refused to block his tax records from being handed over to a House Committee:

The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body, with our Country paying the price.  They refused to even look at the Election Hoax of 2020. Shame on them!

I have repeatedly criticized the former president for such attacks on the integrity of judges when he disagrees with their rulings. This was the correct ruling. It is true that these justices have ruled against him in some cases, including his own nominees to the Court. They have also ruled for him in other cases when the law was on his side. That is the definition of integrity.

Chief Justice John Roberts declared this year that the Court will not yield to “inappropriate political influence” as it faces the difficult questions before it. The Court has proven faithful to that sworn duty.

The Trump attack parallels the attacks from the left. House Judiciary Committee Chair Jerry Nadler, D-N.Y., Sen. Ed Markey, D-Mass, and others stood in front of the Supreme Court to announce a court packing bill to give liberals a one-justice majority.  Likewise, Sen. Richard Blumenthal previously warned the Supreme Court that, if it continued to issue conservative rulings or “chip away at Roe v Wade,” it would trigger “a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”

Senate Majority Leader Chuck Schumer also declared in front of the Supreme Court “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.” Sen. Elizabeth Warren called for raw court packing after denouncing the Court as an “extremist” body.

For her part, Rep. Alexandria Ocasio-Cortez, D-N.Y. questioned the whole institution’s value if it is not going to vote consistently with her views and those of the Democratic Party: “How much does the current structure benefit us? And I don’t think it does.”

Even law professors have joined in calls for radical change. In an August New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for our founding charter to be “radically altered” to “reclaim America from constitutionalism.”

In Federalist 78, Alexander Hamilton call the judiciary “the least dangerous branch” with “no influence over either the sword or the purse…neither FORCE nor WILL, but merely judgment…”

It is a thing of wonder. Despite lacking both the sword or the purse, the Court has prevailed throughout our history. It is designed to stand against everyone, if necessary, in defense of the Constitution.

At a time when the other two branches in our tripartite system have operated on an entirely dysfunctional basis for years with “snap impeachments” and unilateral presidential proclamations, the courts have remained steadfast.

Despite such dangerous legislative and executive fits, the courts have maintained a consistent and coherent role in balance in our system. That does not mean that we agree with their judgment. Many have good-faith objections to the constitutional interpretations in cases like Dobbs v. Jackson Women’s Health Organization. However, the justices followed their long-held jurisprudential views in rendering such opinions in both the majority and the dissenting opinions.

Even when we disagree with decisions, we can respect and support the courts that render them. For example, recently a Fulton County judge overruled the state on when early voting can begin in the Senate runoff election.  Georgia’s Secretary of State Brad Raffensperger initially supported the earlier voting date but then concluded that the state law required a later date after a review from staff attorneys.

I agree with Raffensperger that the state law appears clear on the question. I felt that ignoring such plain language would usurp the authority of the legislature. However, Fulton County Superior Court Judge Thomas A. Cox Jr. ruled in favor of a filing by the Democratic Party and U.S. Sen. Raphael Warnock’s campaign.

As I wrote at the time, I still disagree with the outcome but I felt that Judge Cox made some compelling arguments based on the removal of key language from the law by an earlier legislature. The Georgia Supreme Court yesterday upheld his ruling. That should be the end of the matter. This is a credible reading of state law and the state courts have spoken. While I felt that the default on such questions should have gone to the legislature, I respect the ruling and the fairness of the review.

As citizens, we are not just living in an age of rage but a crisis of faith. Our leaders have lost faith in the core constitutional principles that define us from free speech to the separation of powers. That is most evident in the attacks on our courts and the men and women who serve on the bench. We live in a time when lawyers throw Molotov cocktails and law professors call for “more aggressive” protests targeting justices.

So this holiday, I will be giving a special thanks to those who are willing to don the robe and seek to do simple justice. Despite threats and even violence, they have continued to hold that thin black line in our constitutional system. For that, we should all be grateful.

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