The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We are increasingly operating in a hyperpartisan world in which competing camps of partisan politicians, activists and voters yell at each other across an ideological chasm. This is not likely to be good for institutional norms.
Particularly concerning is the possibility that traditional red lines in American politics that responsible politicians understood could not be crossed might no longer be inviolable. Political limits in a democratic system ultimately depend not on the parchment barriers of constitutional texts but on the tolerance of political elites and the mass public for violations of those limits. It is easier to sustain such limits, however, if we share a common political culture that recognizes the same red lines and the importance of holding them sacrosanct, if there are recognized political incentives for staying within bounds, and if there are few political incentives for straying out of bounds.
As we divide into hostile and polarized political camps, those conditions start to fray. We hold less in common, including a sense of the appropriate boundaries on political action. Political leaders are increasingly cheered on when they fight the other side, and they are increasingly jeered when they seem to be pulling their punches. The more threatening the other political camp seems, the easier it becomes to rationalize using extreme measures to prevent the enemy from succeeding. Charles Evans Hughes once observed that "the power to wage war is the power to wage war successfully." In a hyperpartisan world, politics looks much more like war, and the kid gloves come off.
I would once have thought that mainstream politicians would think that standing on the steps of the Supreme Court building in front of a crowd and yelling that individual justices would "pay the price" for voting the wrong way in a pending case was outside the bounds of acceptable political practice. Sharp criticism of judicial behavior is a familiar feature of American political rhetoric. Even presidents have indulged in it, sometimes in particularly provocative ways. Judges have been called wrong, activists, and politicians in robes. They are not normally threatened. That an experienced Senate minority leader would indulge in such tactics, and enjoy the cheering of the crowd for doing so, suggests that the red lines that help protect the independence and authority of the federal courts are not what they once were.
Defiance of federal judicial orders has long been one of those red lines as well. As Alexander Hamilton promised, the courts exercise neither force nor will. They possess only judgment. The strength of the institution depends on the willingness of political leaders to defer to judicial pronouncements. The political leaders of the federal government have generally had reason to be willing to defer to judges, even when they think the judges are wrong and even when deferring to them has costs.
There are those who worry that President Trump, with his notorious affection for norm violations and his unusual willingness to attack judges in personal terms, would be willing to step over the line and actually defy a judicial order. I have thought that unlikely. But worries are not unreasonable. Not only is Trump personally unconventional and unpredictable, but the larger political system itself increasingly rewards unconventional behavior. If Trump defied a judicial order, would the personalities on Fox News and the Republican leadership in the Senate rush in to condemn the president -- or would they rationalize or equivocate? Would Republican voters think the president had gone too far and express their dissatisfaction at the ballot box -- or would they reluctantly, or gleefully, go along?
It so happens that in the American constitutional culture, congressional subpoenas have carried different weight with the executive branch than judicial orders. Our practices could have developed differently such that defying a congressional subpoena would be a red line, the violation of which would provoke a political uproar appropriate to a usurpation of power. Instead, we treat congressional subpoenas as part of a process of interbranch negotiation and accept some executive intransigence as within the rules of the political and constitutional game.
We have not tended to treat judicial orders so cavalierly. Presidential defiance of a judicial order would raise a specter of lawlessness that would push the system toward a point of crisis. But courts have been appropriately cautious about testing the issue. Judges would prefer to have some confidence that presidents would in fact comply if they were to issue a directive, and judges have frequently found ways to avoid issuing such an order when they did not feel the requisite degree of confidence. Perhaps a panel of the D.C. Circuit was feeling such doubts when it refused to weigh in on whether former White House Counsel Don McGahn had to comply with a subpoena from the House Judiciary Committee. If defiance of a judicial order is no longer a red line that will not be crossed, federal judges would prefer not to expose that fact.
In a hyperpartisan world, the old ways of doing things can no longer be taken for granted. Behavior that was once off limits will come to be tolerated and even rewarded. Politicians on both sides of the political aisle seem to be testing the strength of traditional boundaries, and they may be discovering that the fences are down.