In 1803, when our constitutional democracy was still young, the Supreme Court established the principle of judicial review in Marbury v. Madison. That case forms the basis for judicial review, the court’s power to declare laws unconstitutional. The justices can, and every term do, review and strike down laws, executive actions and administrative actions that violate the Constitution. They are the final arbiter in this regard, and this function serves a vital purpose in our democratic system — one that everyone from a high school student to an Ivy League law school graduate like Vice President JD Vance should understand.
One of the seminal judicial review cases involves the power of the presidency, Youngstown Sheet & Tubing Company v. Sawyer. In April 1952, as the United Steelworkers of America prepared to strike during the Korean War, President Harry Truman issued an executive order directing his secretary of commerce to take over the nation’s steel mills. On appeal, the Supreme Court ruled that Truman lacked the constitutional authority to take that step, ruling 6-3 that “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” There is no doubt that the court has the ability to decide that presidential actions exceed the powers the Constitution grants to a president.
The Founding Fathers purposefully created the judiciary as a check on the executive and legislative branches, in part, to prevent a president from becoming a tyrant.
The Founding Fathers purposefully created the judiciary as a check on the executive and legislative branches, in part, to prevent a president from becoming a tyrant. Parties must follow the courts’ decisions, even though they often do so with some grumbling. In its 1975 decision in Manness v. Meyers, the Supreme Court explained that “all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect, the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.”
When the Supreme Court gutted Section V of the Voting Rights Act, a law passed by Congress, in Shelby County v. Holder in 2013, Democrats complied. Republicans didn’t protest, instead taking advantage of the new rule to pass a variety of state-level measures designed to make it more difficult to register and vote. In another example, Trump v. Anderson, the court held individual states misinterpreted the Constitution when they used it to prevent Donald Trump’s name from appearing on their ballots. The list of examples is long.
Federal judges are appointed to office by the president and receive life tenure, an inherently political process. Once they take the bench they are, at least theoretically, no longer beholden to the political party that helped them rise to power. Republican appointees, including some appointed by Trump, underscored their independence in the wake of the 2020 presidential election when they ruled repeatedly in favor of free and fair elections.
But not everyone seems to be enthusiastic about that independence. Over the weekend, Vance appeared to challenge judicial review, which the Yale-educated Republican would have learned as a first-year law student is an essential part of our constitutionally based court system. On Sunday morning Vance posted: “Judges aren’t allowed to control the executive’s legitimate power.”
It’s hard to view that objectively inaccurate statement as anything other than an argument that the laws that apply to everyone else don’t apply to Trump. Trump has already benefited personally from special immunity rules that prevented him from being prosecuted for official presidential acts. Now Vance and other Trump allies seem to be hinting that special rules blocking judicial rule of executive action, which have never applied to other administrations, should be applied to his.
Earlier in the day Vance reposted other comments that were even more troubling. Sen. Tom Cotton, R-Ark., posted that it was “outrageous” that federal Judge Paul Engelmayer issued a temporary restraining order blocking members of Elon Musk’s DOGE project and others lacking the proper security clearances from accessing Treasury Department systems. “This outlaw should be reversed immediately and Engelmayer should be forbidden by higher courts from ever hearing another case against the Trump admin,” Cotton raged.
Conservative Harvard law professor Adrian Vermeule seemed to concur. “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers,” he claimed. Vance reposted Vermeule, raising further concern that he was advocating for the administration to ignore court orders it disagrees with.
If any party, including the government, doesn’t like a court order, it can appeal it. It doesn’t get to just disregard it.
That is most definitely not how our system works. If any party, including the government, doesn’t like a court order, it can appeal it. It doesn’t get to just disregard it. Vance took an oath to uphold the Constitution, just like Sen. Cotton did. And yet, this weekend they seemed to be advocating for lawlessness. If that’s not the case, now would be a good time for them to clarify their views. If they don’t, they are flirting with blowing up one of the three pillars of democracy.
At least for now cooler heads seem to have prevailed. The Trump administration filed an appeal of Judge Engelmayer’s decision — the right step to take when disagreeing with a lower court’s ruling. But the country is in a dangerous place if every time a judge issues a decision against the Trump administration — as a Rhode Island judge did Monday morning in a case challenging the administration’s ability to impound congressionally allocated spending and a Massachusetts judge did Monday afternoon in the case challenging the administration’s new rules around National Institutes of Health grant payments — the judiciary and our democracy are threatened all over again.
On Monday, Musk commented “Absolutely” in response to a post that began “JUDICIAL OVERREACH IS A THREAT TO DEMOCRACY.” The true threat to democracy are efforts to undercut the legitimacy of the courts by misrepresenting the importance of judicial review.
In the words of Sen. Adam Schiff, D-Calif., “We don’t have to be lawyers to know that ignoring court decisions we don’t like puts us on a dangerous path to lawlessness.”
And Republicans, just like Democrats, take an oath to uphold the Constitution, not to pander to the president. The political consequences of these misplaced legal arguments have to be taken seriously. But the legal arguments underpinning them are deeply unserious. And leaders like Vance should be ashamed to even be seen engaging with them.