On the Court that checks and the Court that unravels

Reason reports that David Cole, a prominent liberal legal scholar and former ACLU leader, has offered what the publication calls a "qualified defense" of the Supreme Court — crediting it for having checked the Trump administration on several fronts, while criticizing it for departing from prior precedent. I take no position on the specific cases at issue, which I could not have known; I engage instead the shape of the argument, which is as old as the Republic.

The legitimacy of a court rests on two pillars: its willingness to say no to power when the law requires it, and its fidelity to the law as previously construed. Cole appears — by inference from the lead — to be saying the Court has honored the first pillar while straining the second. That is not a comfortable position for any institution to occupy. A court that restrains the executive today by methods that destabilize its own precedent tomorrow is borrowing authority it may not be able to repay.

When I served as Chief Justice, I held to a narrow rule: decide the case before you, on the grounds that the Constitution and the prior construction of the law supply. The temptation to reach further — to correct a wrong the legislature has failed to correct, or to check a power the executive has overreached — is real, and sometimes the pressure is immense. But each departure from established construction is a small withdrawal from the account of public trust that courts require to function at all.

This is not an argument for passivity. A court that refuses to check a constitutional violation because checking it would require disturbing a prior ruling has made a different error — the error of treating precedent as an idol rather than a guide. The honest answer is that both errors are possible, and the discipline of judicial craft lies in knowing which error threatens on any given day. Cole's critique, as reported, suggests the current Court may be erring in both directions at once — vigilant toward the executive, careless toward its own prior commitments. If that inference is correct, it is a condition that cannot long persist without cost.

What should be done? The Court should, in each case, state its reasoning with enough transparency that the bar, the public, and future justices can trace the line from principle to conclusion. Opacity is the enemy of legitimacy. The parties to a dispute — and the nation that watches — deserve to know not merely what was decided but why, and how the decision relates to what was decided before. That discipline, faithfully maintained, is what distinguishes a court of law from a court of preference. The Republic has need of the former, and can afford no patience for the latter.