RUTHFULLY YOURS

The Book of Ruth begins with an ominous warning: “In the days when the judges ruled, there was famine in the land.”

History shows that judges make poor leaders. Thomas Jefferson understood this when he tried to limit the influence of the “midnight judges” appointed by John Adams. Andrew Jackson refused to implement a Supreme Court decision that he believed undercut his policy toward Native American tribes. Abraham Lincoln responded to what he regarded as the overreaching of judges by suspending the writ of habeas corpus. Franklin Roosevelt threatened to pack the Supreme Court when the justices tried to dismantle his congressionally-enacted New Deal.

Now, many district court judges are determined to thwart the policies of President Donald Trump. Judicial efforts to thwart executive and legislative actions have occurred frequently in our history, as have executive and legislative responses to such judicial activism.

Under Article 3 of the United States Constitution, judges are supposed to play a critical role in checking and balancing the excesses of the other branches. Their central responsibility is to enforce the procedural safeguards of the Bill of Rights, most particularly those assuring due process, equal protection and the right of dissent. They have no legitimate business interfering with the substantive policies of the executive or legislative branches.

There was a time in our history when the Supreme Court interpreted the Constitution to include what was known as substantive due process — a vague concept that presumed to empower judges to strike down legislation and executive action that they deemed “unreasonable” or otherwise violative of broad constitutional limitations such as the sanctity of property and contracts. Under these interpretations, they held unconstitutional many liberal and progressive reforms such as child labor restrictions and other protections of workers and consumers.

Liberals were furious at this expansion of judicial authority, and many Democrats demanded that restrictions be placed on judicial activism and overreach. During Franklin Roosevelt’s presidency, dissenting justices, led by Louis Brandeis, the Supreme Court’s most liberal member, called for judicial restraint and opposed what they regarded as the misapplication of substantive due process to the policies and actions of elected officials. The Brandeis view prevailed, but only after Roosevelt threatened to pack the court with additional justices who would sustain his policies. The result was a change in the voting patterns of several justices — which historians labeled “the switch in time that saved nine.”

Now the shoe seems to be on the other foot. It is left-wing judges who are seeking to thwart the right-wing policies and actions of a Republican president. They do not explicitly invoke substantive due process — they wouldn’t dare in light of the well-known history. But their actions smack of that rejected concept. They disapprove of Trump’s deportation, defunding, firing and other executive actions that they regard as un-American and unfair — just as the conservative judges regarded Roosevelt’s attack on the right of contract as un-American.

In both situations, judges, hostile to the substantive polices of the administration, searched for procedural and other reasons to halt or slow down the implementation of these “bad” policies. In the current situation, the Trump administration has sometimes provided the courts with justifications for their actions, by applying due process safeguards narrowly, or questionably. But every honest legal realist will have to acknowledge that many of these judicial decisions have been influenced by policy considerations. Judges look harder to find procedural objections to policies and actions of which they disapprove.

The bottom line is that neither party passes the shoe on the other foot test. Both praise judicial activism when it helps their side and rail against it when it hurts them. The Trump administration praised SCOTUS for ruling that Harvard’s race-based affirmative action admissions program was unconstitutional, but it objected when the courts stayed the administration’s cutting of funding to Harvard and other institutions. The Democrats cheered when the justices decided Roe v Wade on questionable constitutional grounds, but they jeered when a later court ruled that there was no constitutional right to abortion. These changing attitudes are not about different general principles regarding judicial activism or restraint. They are about specific outcomes of highly politicized cases and controversies.

In the end, Brandeis had the correct approach: judicial restraint, regardless of the partisan or ideological consequences. He consistently voted to uphold laws and practices with which he had strong substantive disagreements, so long as they did not clearly violate express provisions of the Constitution. That is the proper role of unelected judges in a democracy.

The people — not the judges — should rule the land.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of War Against the Jews: How to End Hamas Barbarism, and Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast.