Historians may view decision by three federal judges to issue injunctions against Trump's executive orders on immigration as the last gasp of the doctrine of judicial supremecy.
From a legal standpoint, they are nothing more than primal screams from a lifetime appointee. If actually enshrined into case law, they would allow judges to effectively control American foreign police and would remove the right of the people to to act through their elected leaders on key matters of national security.
Border control is the most basic aspect of national security. Without the ability to control who enters, the United States will become the world's rest stop. Other people with far more legal expertise have gone through the various decisions line-by-line to analyze their vicious stupidity, but the point here is that this is but the latest and most extreme example of how the judicial branch of government is destroying itself.
In my lifetime, the courts have claimed the following powers in defiance of the people they are supposed to serve:
- The power to determine when human life begins,
- The power to determine if capital punishment may be imposed,
- When it is lawful to discriminate against people based on race or sex,
- When the government may lawfully take property from one citizen and give it to another in the name of economic development,
- The definition of marriage,
- When the state can compel people to create art against their religious beliefs,
- When the state can compel people to buy products they don't want.
The list can go on, but these are core rights that no free people would willingly surrender.
One can argue the above disputes on the merits and there are still lively public debates on all of these issues, but the proper forum for their resolution was the give-and-take of elective government.
The traditional solutions - the federalist solution - would be for people in the various localities to arrange matters as seemed best to them. This would produce certain contradictions and a level of unevenness, but in the end, a result would be found that appealed to the preference of the majority while respecting the views of the minority.
These solutions - even if wrong - would still be viewed as legitimate and the losing side would renew the struggle in an effort to convince fellow citizens to willingly embrace their views.
Imposing these policies by judicial fiat destroys this process of debate and the current polarization is to a great extent the result of the knowledge that current policy debates are now all-or-nothing based on who appoints the judges who will decide them.
Consider for a moment how much less controversy there would be if the Supremes hadn't decided to impose homosexual "marriage" on the nation. Many states were already moving in that direction and even more conservative ones were likely to create a form of "civil union" that would have provided legal status without redefining an ancient human institution. Indeed, many religious people who opposed a redefinition of marriage could sincerely support the civil option.
What the Supreme Court did was take compromise of the table; it radicalized the discussion because five unelected and unaccountable people wanted it to be so.
The Supreme Court decisions were bad enough, but now we have low-level judges bringing the nation's border security to a halt while the preen for the cameras.
The law only carries weight where it is accorded respect. The less people care about it, the less authority it will hold. It was one thing to attack citizens in their homes and businesses because individual people have no central point on which to rally. Should they wish to sue, the court could (and often does) deny them "standing" and refuses to even hear them.
But now the powerful executive branch has been attacked deep in its own territory. Congress has long tolerated encroachments from the other branches because it allows the members to strut and complain without any accountability. The executive is another creature entirely.
I've mentioned this before, but Trump is in many ways a litmus test, a spotlight on the corruption in Washington. More than anything else, he is exposing the blowhards in the GOP as a bunch of feckless cowards who talk a conservative game on the campaign trail, only to betray their constituents once they get in office.
Under squishes like the Bushes and with Democrat presidents, they had cover, but Trump is forcing them to cast their votes and be counted. This is arguably the true source of Conservatism, Inc.'s hatred of him.
Like free speech and civility on campus, the left will shortly discover that a respected judiciary is something they're going to miss when it's gone.