The Court between ambition and deference

Reason reports that David Cole — a prominent liberal legal scholar and former ACLU leader — has offered what it calls a 'qualified defense' of the Supreme Court, crediting the bench for checking the Trump administration on several fronts while also criticizing it for departing from established precedent. That combination is, to my disposition, precisely the tension worth examining. A court that resists the executive on one day but erodes the rules of interpretive consistency on another is not a stable check — it is a variable one, and variables are what factions exploit.

In Federalist No. 51, I wrote — and still hold — that the great security against the concentration of power in any one branch lies in giving each department the necessary constitutional means and the personal motives to resist encroachments by the others. The bench has the means: life tenure, salary protection, the power of judicial review as it has developed since Marbury. What it must also maintain is the motive — the institutional self-regard that makes justices treat the Court's own precedents as something more than suggestions. When that motive weakens, the branch's capacity to serve as a genuine counterweight weakens with it.

Cole's critique of the Court for going against precedent (as characterized by Reason) touches something I would call a structural vice rather than merely an intellectual one. A written compact — and the Constitution is nothing if not a written compact — derives its binding force from the expectation of consistent interpretation. If the bench may depart from its own settled readings whenever a new majority finds a new occasion, then the text itself becomes pliable, and pliable text is no different in practice from no text at all. The amendment process in Article V exists precisely so that the Constitution may be changed — but changed deliberately, by the people acting through their representatives, not silently, by five votes in a single term.

On the other side of Cole's ledger, the Court's willingness to check executive action is the mechanism working as designed. I say this without reference to the merits of any particular ruling — I cannot recollect the specific cases decided after my time — but structurally, an executive that cannot be checked by the bench is an executive that has absorbed judicial power, and that is the definition of tyranny whether the cause it serves is popular or not. The fact that a prominent critic of the Court acknowledges this function is worth noting: constitutional architecture sometimes produces results that neither faction wanted, and that is a feature, not a failure.

The deeper question Cole's analysis raises — and which Reason presents without fully resolving — is whether the Court can be simultaneously reliable and inconsistent: reliable when resisting executive overreach, inconsistent when honoring its own prior judgments. My answer, offered as inference from principle rather than recollection of modern cases, is that it cannot sustain both postures indefinitely. Institutions borrow credibility from their history of restraint. When that history is revised selectively, the borrowing eventually comes due.

What the republic requires of the bench is not heroism and not deference, but mechanism: a steady, foreseeable, rule-bound operation that no faction can count on capturing for its permanent advantage. If the current Court is checking the executive, that is the mechanism functioning. If it is also abandoning precedent for reasons that track the preferences of its appointing coalition, that is the mechanism being weakened from within. Both things can be true at once, and Cole, as reported by Reason, appears to understand that. The structural question — which is always my question — is which tendency will prove stronger over the longer run.