This is a difficult time for American courts. The president attacks judges on Twitter, Democrats scheme to pack the Supreme Court with justices, and commentators cynically question the legitimacy of federal judges with whom they disagree. Those most involved in our current political scrum seem determined to drag the judiciary to the ground with them.
No wonder Chief Justice John Roberts dedicated his annual report on the federal judiciary to the topic of improving civic education and respect for the rule of law in our country. He related the story of John Jay, one of the authors of the Federalist Papers, whose contribution to that collection was cut short by injury in 1788. That winter, Roberts tells us, Jay heard about a riot occurring outside of a jail near his home in New York. He grabbed his sword and ran to help quell the angry mob. At the scene, Jay was struck in the head by a large rock and knocked unconscious. He had literally placed himself in danger to protect both the accused in this case and the dignity of the legal system of this country that would determine their culpability.
The courts today could use a healthy dose of that swashbuckling spirit. They are uniquely situated to reaffirm our core legal values in the public sphere, and to reassert their position as an equal branch of government. This is not to say that the courts should willingly inject themselves into partisan debates. Not every political exercise is a partisan one, however, and the courts are well within their institutional role to remind the other branches, the media, and the public of our shared and cherished legal tradition, and to take appropriate measures to ensure it remains intact.
Unfortunately, the courts have not embraced this important role, opting instead to avoid even traditionally tame political interactions. These acts of isolation often do more harm than good. Last month, for instance, the Kansas chief justice cancelled her planned state of the judiciary speech, the only regular address of the system to the state legislature. In doing so, she forfeited the chance to communicate the needs and perspectives of the state judiciary to the rest of the state government and to the public.
In place of defending their constitutional prerogatives, state and federal judges mostly seem content to work quietly on civic education programs. These efforts are laudable, but they certainly cannot compensate for the missed opportunities on the larger stage. As Jay recognized, sometimes the moment demands bolder and more aggressive action in defense of core principles, even if the defense places you directly in the line of fire.
In the past, judicial leaders understood the need to step into the political arena on behalf of the courts. After his appointment as first chief justice of the United States, Jay stayed in direct contact with the administration of George Washington, consulting with national leaders on many matters of importance to the judiciary. Then more than a century later, William Taft inherited a federal court system that was under relentless political attack and encountered regular interference from the other two branches. Taft immediately began public efforts to defend and improve the judiciary and the rule of law, including several personal trips to testify before Congress.
Like Jay and Taft, judges in the past often held elected office before they donned the robe and understood the manner of politics. They viewed the judiciary not as an aloof and cloistered fraternity, but as an energetic and vigorous participant in the American democratic experiment. So only by standing up for legal norms and the role of the courts in preserving those norms can the judiciary take its place as an equal branch of government. Few judges today have either the experience or the temperament to stake the rightful claim of the courts in the political arena that our country is in.
So the time is now for bolder judicial leadership. Our prolonged national tantrum is entering another year, and the courts may be the only adults left in the room. Will they stay in the corner and remain too shy to call out the ongoing devaluation of the rule of law? Or will they step up to remind us of the blessings of liberty and its obligations under the Constitution?
Jordan Singer is law professor and concentration adviser at New England Law in Boston where he focuses on civil procedure and judicial selection. He writes about the federal courts at The Interdependent Third Branch.