New in Civitas Outlook: The Temptation of the Inferior "Imperial Judiciary"

"As Judge Kenneth K. Lee wisely warned, judges of the inferior courts should 'not be seduced by the temptation of judicial resistance,' lest they inch towards an inferior 'imperial judiciary.'"

Long-time readers may remember my writings about the "judicial resistance" during President Trump's first term. Well, it seems we are swinging back to that era. My new essay in Civitas Outlook is titled, The Temptation of the Inferior "Imperial Judiciary."

It begins:

In this 250th year of our independence, the horizontal and vertical structure of our government should be well settled. Horizontally, the legislative branch makes the law; the executive branch enforces the laws; and the judicial branch interprets the laws. Vertically, Congress sits atop the lawmaking powers, not administrative agencies; the President sits atop the enforcement power, not the bureaucracy; and the Supreme Court sits atop the judiciary, not the inferior courts. Critically, the states have no role in enforcing or impeding federal law. Yet somehow, everything has gone topsy-turvy. Under the new order of operations, the President takes an action, states bring a lawsuit, a district court judge decides whether the policy goes into effect, and then two or three members of the Supreme Court promptly settle the issue with near finality. We've come a long way from "School House Rocks."

During President Trump's first term, the horizontal separation of powers were routinely breached as states and lower courts resisted virtually every presidential action. That much was well known. But with Trump 2.0, we have seen a novel inversion of both the horizontal and vertical separation of powers: lower court judges are resisting both the President and the Supreme Court. As Judge Kenneth K. Lee wisely warned, judges of the inferior courts should "not be seduced by the temptation of judicial resistance," lest they inch towards an inferior "imperial judiciary."

President Trump, during his first term, faced an unprecedented barrage of legal challenges. The self-professed "legal resistance" launched a never-ending barrage of lawsuits to challenge virtually every facet of his administration. Worse still, many courts eagerly allowed these suits to proceed on the jurisprudential grounds that President Trump was not entitled to the same deference and regard as his predecessors. I described this jurisprudential shift as the "judicial resistance." I was widely criticized for using this term. In the New York Times, Dahlia Lithwick and Steve Valdeck described it as a "dangerous myth." But I think I was onto something.

And from the conclusion:

The risk here is clear. Judge Lee warns that the "judicial resistance" will "risk inching towards an imperial judiciary that lords over the President and Congress." Here, Judge Lee invoked Justice Amy Coney Barrett's ruling in Trump v. CASA (2025), in which she warned against "embracing an imperial judiciary." We can take the lineage back even further. In Planned Parenthood v. Casey (1991), the landmark decision reaffirming Roe v. Wade, Justice Scalia declared, "The Imperial Judiciary lives." Of course, the "Nietzschean vision of . . . unelected, life-tenured judges" Scalia warned against belonged to five members of the Supreme Court. Scalia would often yell "stop" to his colleagues. But now the resistance has spread to the inferior federal courts.