The bench should not do the executive's bidding — not even when unprompted

I was told, by the account in Reason, that Justice Clarence Thomas has made a habit of arguing for expanded presidential power even in cases where the administration in question had already won on narrower grounds. That detail is the one worth sitting with. When a justice reaches beyond the question before the court to enlarge the power of the executive, something beyond ordinary legal reasoning is at work.

The separation of powers was not designed for fair weather. Any arrangement of government is tolerable when the officers filling it happen to be virtuous. The test of a constitution is whether its structure still holds when they are not. The courts were given independence precisely so they could restrain the other branches — not so they could furnish them additional weapons from the armory of precedent.

I speak here not against any particular justice or any particular president. The danger I would name is the pattern itself. When the judicial branch volunteers to enlarge executive authority beyond what a case requires, it sets a precedent that will be used by successors of every political complexion. The faction that celebrates this expansion today will lament it bitterly when the office passes to someone they distrust. That is the lesson faction always refuses to learn.

There is an old and sound principle: courts ought to decide no more than is necessary to resolve the dispute before them. Minimalism of that kind is not timidity — it is institutional hygiene. It preserves the court's own credibility by keeping it from appearing as an ally of one branch rather than a referee among all three. Reason suggests this minimalist discipline is not what is being practiced here, and I find that inference troubling.

The office of the presidency is already formidable. The resources at its command, the attention it commands from the press and the public, the precedents accumulated across more than two centuries — all of these already press toward concentration. The courts need not add to that pressure. Their function is to hold the line, not to advance it.

My counsel to the citizenry is this: watch the opinions that go beyond the case, not just the outcomes. A ruling that hands the executive a victory it did not ask for deserves more scrutiny, not less, than one that denies it. The Republic depends on each branch remaining within its own orbit. When one enlarges another's orbit unbidden, every free person ought to ask why — and what comes next.