Thread by @ThomasHCrown

Ok so now I'm going to explain why it's a good idea to have the federal judiciary have some institutional respect, even if the Branch itself is determined to burn it all away.

I'm basically reminding myself, mute as needed.

First, and this is a thing both ordinary humans and Article III tend to forget too often, much as The Police Are The Government, The Judges Are The Government, Too.

Everyone tends to put this fact in cold storage because courts offer means of redress against various acts and omissions by the government, or even between parts of the government over various acts and omissions.

However, forensic examination of certain documents clearly shows that federal courts are part of the government. For example:

One might also look at the signature line on paychecks, etc., needed to keep the things running. SPOILER:

Ok, so the Courts are part of the government. So? What does this have to do with anything?

Excellent question. The answer: Because it's the only branch with no actual enforcement mechanisms of its own.

OTHER THAN THE MARSHAL OF THE SUPREME COURT THAT IS

Congress can yank every sitting officer in every other branch out and toss them to the wolves, or just make all the lights go out. The Executive is by definition the enforcing arm of the government.

The Court has only American respect for the rule of law in its favor.

Chief Justice Marshall was one of the canniest political operators in American history. He realized both of these things to be absolutely true; but he'd just been through a Revolution with his besties, so he knew how they thought.

The trick was to take the limited grant of authority in Article III, Section 2 -- "The judicial power shall extend to all cases, in law and equity [of diverse kinds] ... [and] to controversies [of other kinds]" and make it grow.

I'd like to call a quick timeout here and tell you that a lot of what you learned about American governance in high school is basically New Deal agitprop. Somewhere between a lot and almost all of the folks who follow me know this, but stick with me.

We all learn about the separation of powers and checks and balances and a bunch of other hokum. It's good at a simple level and really, profoundly stupid when you think about it.

Consider: The Court's entire enforcement mechanism depends on agreement from both other branches. No funding for its enforcement mechanism (its judges' salaries are guaranteed) OR no enforcement, no branch of which to speak.

It cannot meaningfully lend its weight to a disagreement between the other branches unless they both allow it.

Indeed, the reason Article I is Congress and is the very first thing after the grandiloquent Preamble is because Congress is supposed to be primus inter pares; the Executive is supposed to come next for a bunch of reasons; and then oh yeah, we need a dispute resolution mechanism.

Marshall knew this and knew he needed to start setting the habit of treating the Supreme Court's pronouncements as writ on at least a par with anything the Executive could do.

Hence, Marbury v. Madison. In a case that had quite literally almost nothing to do with the judiciary's power to expound on the True Meaning of the Constitution, but which was critically important to partisans who made up the other branches, whoops! He slipped it in.

Now, I'm going to stop again to make a point at which I hinted earlier, which is also The First Reason Judicial Legitimacy Matters: Because the other branches accede to it, and so we actually do have an effective, nominally non-partisan dispute mechanism.

It has unfortunately given Congress way too many easy outs -- The Executive is breaking the law? Why defund or impeach when you can avoid a political confrontation and sue? -- and has encouraged far too much deference to the Executive in general (cough Chevron).

But a suit against the United States, or its officers, has legitimacy and the attention of both branches by virtue of the fact everyone thinks it should.

It is well and good that we have the power to choose our elected representatives. It is almost as good that we can, through the exchange of paper and words, get some dude whose paycheck comes from the same place to tell them to place nice and they nod.

The right of a free people to rebel against tyranny is, I would argue, inherent; but I would also argue that it is unnecessary as long as would-be tyrants take pieces of paper that end with IT IS SO ORDERED as brakes on their conduct.

Moreover, the fact that the judiciary serves as a pressure valve between the two political branches is actually double-edged: It allows Congress to pass bucks like Rosie O'Donnell passes on diet plans, but it also keeps them busy and a bit out of our hair.

But more prosaically, it also matters that we see it as essentially non-partisan.

Here, I actually do not refer to the Supreme Court. The Supreme Court has so narrowed the classes of cases that it takes and reduced the number that the very selection process leaves it too often a political actor.

Insofar as most people interact with the federal courts, their primary experience is with the district courts, and to a much lesser extent, the circuit courts of appeal.

The most dangerous words in the English language are "Carter appointee," but only partially for their extreme partisanship.

Rather, it's because, with few exceptions, President Carter's appointees to the several courts were of dubious judicial quality.

In most cases at the lower federal courts, a win or a loss on a general criminal or civil matter is a function of the merits of your case, and the peculiarities of the judge, judges, or jury involved.

In a case of Carter appointees, it is a function of whether or not the moon has run its course through the Ram, or whether their breakfast sausages were particularly eloquence that morning.

But in either case, one's politics have very little to do with one's outcome.

This matters because our ability to work out certain kinds of disputes among ourselves, with or without the involvement of the other branches, assumed to be non-partisan.

It maybe you should be dragged through the streets for voting for Evan McMullin, or for that one jerk totally should not be City controller, but it won't matter on the rare day you actually get to be in a federal courtroom.

The problem is that we have allowed the participants in our system to undermine it, and we do precious little about it.

Everyone, or rather, everyone was not a democratic partisan or a media figure (but I repeat myself) understands that the politicization of Supreme Court Justices began before Merrick Garland and is in no danger of stopping.

But, because the Supreme Court takes so few cases now, a ruling by a Circuit Court of Appeals, and sometimes even a district court, can functionally make national law.

A lot of people on the right think that the recognition of this, and the consequent nuclearization of appellate judge confirmation, began during the Bush years. It did not.

The Sixth Circuit was in a state judicial emergency (and dysfunction) in the late Clinton years. There were scattered messes on the Fourth Circuit and others as well.

Because the Supreme Court unilaterally lowered its workload, and Congress did nothing to correct this, the value of the appellate courts as politics by other means increased.

But this was merely another phase in a battle that would inevitably progress into the district courts.

Every single Article III judge is a political operative. He or she would not be on the bench but for the ability to do politics at some level.

I do not merely mean things like Franklin Roosevelt simply elevating his Cabinet the Supreme Court or the equivalent.

Your local district judge is a lawyer who shook the right hands, knew the right people, and was promoted accordingly.

This should not be a news flash. But, it should be the last thing you think about when appearing before their judge.

But because the Supreme Court no longer acts as the sole Locus of alternative political decision-making, that role has inevitably filtered down to district courts issuing national injunctions.

Cuz we now have interwebs, not only lawyers, but the actual humans now know which judge ends up trying to make national policy From the Bench.

There is no mechanism to stop this, without Congress limiting the jurisdiction of the lower courts.

Congress is not about to cut its responsibility-avoidance mechanism off, and shuns even the thought of limiting district court jurisdiction, *despite creating district courts in the first place and the mechanism for limiting Article III's jurisdiction being right in Article III.*

All of the incentives in our warped system argue against ending the increasing politicization of the Courts; and the ones that argue for it are extraneous to the system, considered anachronistic, have no popular support, or some combination of the above.

So on the one hand, the last thing we want to do is give even more deference to our unelected branch; on the other, the elected branches want all of the glory and none of the responsibility, and only seem interested in governing when camera crews are set up.

The late Justice Scalia once noted that the reason the Supreme Court was the object of protests over abortion was that the Court had shed its image as one of resolving archaic disputes over old documents, and had instead entered the political arena.

Our elected officials are not merely unconcerned by this, they positively encourage it, from the selection process through their own inaction in policing the junior-most branch through fundraising off of it.

The President, as the wielder of most day-to-day power in this Principate, is only bothered when Article III steps on his toes; otherwise, his attitude is roughly equivalent to Congress's.

If we are ever to have a Court that does what it's supposed to -- a very large question given American opinions and the collective action problem -- we must restore and maintain the *proper* deference given to it, while trimming away at the problems that led us here.

Anyway, I probably have a lot more about which to ramble, but I've wasted enough of my own time thinking out loud on this.