There are serious criticisms to make about this new Trump administration, but repeating incantations about democracy and free trade and the rule of law are not serious critiques.
Notes Wikipedia: “An incantation, spell, charm, enchantment, or bewitchery is a magical formula intended to trigger a magical effect on a person or objects.”
Judicial supremacy is not the rule of law. Judges don’t get to adjudicate every decision of the executive branch. Judges and lawyers need to stay in their lane. There is not one overarching narrative for all of life. Law is not the sole standard for executive action.
If you are losing an argument with the glib, accuse your opponent of being reductive (to democracy or liberalism or expertise or authority or free trade or the rule of law). The world is so complex that to have a discussion or to create a predictive or explanatory model, we always have to reduce variables.
Asking “What then?” or “So what?” are useful prompts for clear thinking.
Political science professor Darel E. Paul writes:
In the view of his opponents, Donald Trump’s single greatest threat is to something called “the rule of law.” The president’s executive order disciplining lawyers and law firms that “abuse” the legal system and federal courts? Violation of the rule of law. The administration’s withholding of billions of federal dollars from Harvard University? Violation of the rule of law. Shutting down the Voice of America? Violation of the rule of law. Banning natal males in female sports? Violation of the rule of law. Refusing to extract Kilmar Abrego Garcia from the Salvadoran prison to which he was mistakenly deported? Again, violation of the rule of law.
Trump is hardly alone in assuming this role. Americans and Europeans alike condemn right-wing populists in Poland, Hungary, Germany, France, Italy, and beyond for their inveterate threats to what is universally referred to as the rule of law. The concept is even used as a synonym for democracy. In the recent words of the German Foreign Office, placing the right-wing populist party Alternative for Germany (AfD) under the highest level of government surveillance was an expression of “democracy” not because it was done by the German national legislature but because it was done by an “independent” expert agency motivated to defend the “rule of law.” Stateside, even stalwart centrists like David Brooks now insist we are all either in the Resistance or abetting the road to fascism.
In the struggles of contemporary liberals against right-wing populism, the rule of law is presented as the sum of all good things, a principle no right-thinking person could either limit or qualify. Yet the rule of law is but one among many virtues a legal system might embody. It is not the same thing as justice, or legal equality, or human rights. It is certainly not a synonym for democracy. In overruling the acts of legislatures, in fact, the rule of law at times turns out to be positively anti-democratic. Is the rule of law simply an empty slogan fit only for the editorial page? Does it have any content beyond “Hurrah for this!” and “Down with that!”?
Advocates of the rule of law often define the concept as a set of political ideals around the limitation of the exercise of power, in particular demands for the exercise of reason, the achievement of predictability, and the elimination of arbitrariness in the law. Thus an American federal judge ruled in February that the Trump administration may not enforce its executive order against DEI programs because the order’s vagueness “invites arbitrary and discriminatory enforcement.” Likewise, Harvard University has sued the Trump administration for acting in an “arbitrary and capricious manner” by freezing billions of dollars in federal funding to all parts of the university system.
Rule of law advocates also define the concept by the doctrine of the separation of powers, with particular emphasis on judicial independence. The European Union long targeted the Polish government precisely for its supposed violations of judicial independence and the separation of powers. In December, Justice John Roberts strenuously defended “the independence of judges on which the rule of law depends.” In March, Justice Sonia Sotomayor equated the rule of law with “fearlessly independent” courts. Responding to Trump administration calls to impeach federal judges who have ruled against it, the American Bar Association proclaimed, “The ABA will defend our courts because we support the rule of law.”
This all sounds very high-minded. Certainly everyone wants a court system with a basic degree of autonomy to render decisions on specific cases free from executive, legislative, or societal pressure. But who ultimately decides the definitions of “arbitrary,” “capricious,” and “reason”? Who decides how much judicial independence is sufficient? Judges do. The most elevated meaning of the rule of law comes when it is juxtaposed to its opposite, the rule of men. Yet excepting only when we enforce the law upon ourselves, the law always requires particular men (and women) to interpret it and to enforce it. Even under the rule of law, we are necessarily subject to the rule of men. The difference is that these men—judges—rule us in the name of the law.
This can quickly morph into judicial supremacy, a condition in which the highest judges are themselves the law. In a common-law system such as the United States, courts make law all the time through the normal process of judicial review. Political actors know as much and craft their lawsuits precisely to evade congress and legislate through the judiciary. Can’t overturn state bans on contraception and abortion? Invent a new right to privacy through Griswold and Roe. Can’t convince the state to allow you to own a handgun? Lock in an individual constitutional right to bear arms through Heller. Can’t get national legislation incorporating gender identity in US civil-rights law? Have the Supreme Court do it through Bostock.
In debating the requirements for the rule of law, advocates always mention the role of courts in balancing the power of both executives and legislators. But who balances the power of judges? What is the check on their power?
