Short Take: Of Last Resort

Howard Wasserman channels Alexis de Tocqueville at PrawfsBlawg in taking the ever-breathless Dahlia Lithwick to task.

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: “Thankfully, in America it’s the courts who get the last say on what the Constitution allows.”

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America.

The new name for this is lawfare, challenging every decision with which one disagrees in court in the hope that a judge, some judge, any judge, will disagree and use his fiat to supersede the decisions of Congress or the Executive. While the basic notion of judicial review, established by no less dubious a character than John Marshall in Marbury v. Madison, is accepted despite its having been created by judicial fiat, Marshall pulled it off, despite President Jackson’s snippy retort, “John Marshall has made his decision; now let him enforce it.”

Lawfare is a two-pronged trick, the first being the possibility of finding a judge, some judge, any judge, who will seize upon the attack to substitute his judgment for those of elected officials, the only condition being that he can claim some vague hook in the Constitution, or its emanations and penumbras if not even the broad words will do. The second prong is delay, the time required to brief, to argue, to oppose, reply, maybe sureply, then to reargue, and then appeal. And perhaps petition, or wait until after the en banc decision, before collateral attacks starting the process anew.

They say time heals all wounds. They say justice delayed is justice denied. They say mares eat oats, and does eat oats, and little lambs eat ivy. Will a switch in time save emoluments? Emoluments is a hard word to work into a platitude. Is Lithick up to the task.

This got me thinking of Alexis de Tocqueville, who famously said that “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”…

Tocqueville’s thesis affects just how much judicial supremacy we get in a judicial-departmentalist scheme. The more political questions that are resolved into judicial questions, the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments.

Wasserman’s use of the word “must” with regard to the executive’s response to judicial decisions is, perhaps, a bit optimistic. Jackson’s reaction to Marshall may not have altered the course of history, but that doesn’t mean it can’t happen. It only means that it hasn’t happened yet.

There is scarcely a thing done by the Executive branch that hasn’t given rise to a legal challenge. This isn’t to say the challenges aren’t worthy, though some (such as Lithwick’s Arpaio pardon suit) border on the frivolous. But as Wasserman notes, there are decisions that are political in nature, and they are determined in election booths rather than chambers. At some point, an elected official executing the prerogatives of office may well hit the wall and refuse to “enforce those judgments.”

Much as Tocqueville’s thesis is coming to fruition before our eyes, and Wasserman’s admonition that the judiciary has become the decider of political questions of last resort, picture a Chief Executive, sitting behind the Resolute desk, staring across the room at the portrait of Andrew Jackson, muttering to himself, “enough.” Even slippery slopes can bottom out eventually, and to the extent Constitution, law, precedent and norms aren’t particularly important to an unprincipled executive, what makes us think he can’t be pushed to speak the words of his favorite past president?

Our reliance on the executive’s adherence to judicial supremacy is firmly grounded in our national history and psyche, but push an amoral guy too far and you never know what he’ll do. Norms are only norms until they’re not, and when a crazy man’s back is pushed to the wall, one can never be sure what he’ll do.

8 thoughts on “Short Take: Of Last Resort

  1. Bruce Coulson

    Good article, but President Jackson’s retort was in response to the forcible resettling of the “…Chickasaw, Choctaw, Muskogee-Creek, Seminole, and Cherokee…” nations (the infamous ‘Trail of Tears’) and the Court’s official finding. (Which did nothing as far as the Indians were concerned.) We managed to survive that, but then we were a lot younger.

  2. Richard Kopf


    Since Sheriff Joe had not been sentenced, his case is not final. As the Acting Chief of the Public Integrity Section of DOJ has told Judge Bolton, “The presidential pardon removes any punitive consequences that would otherwise flow from defendant’s non-final conviction and therefore renders the case moot.”

    Judge Bolton would be wise to follow the advice of the Justice Department. Why? Because that advice and the dismissal that it requires is manifestly what the Constitution demands under, Art. III, Section 2, Clause 1 of the Constitution. If I were Judge Bolton, I would quit dithering, toss the conviction, and turn my attention to a live case and controversy.

    All the best.


    1. SHG Post author

      I suspect Judge Bolton will do exactly that and toss Crazy Joe’s (just my pet name) conviction, as he would if he died before the conviction became final. But I suspect he’s making the DoJ pay in sweat and just a wee bit of blood before doing so, as a little judicial reminder to the Executive that the least dangerous branch doesn’t like to be treated shabbily.

      Regardless, this suit, atop the ones for every other move he’s made, could push the envelope too far, particularly in the hands of a guy for whom norms mean nothing. Jackson, FDR, others, threatened it, but will Trump actually do it? I, for one, don’t want to find out.

  3. wilbur

    “I, for one, don’t want to find out.” I second that emotion.

    The unfairness in treatment the President and his supporters perceive they have received from the media may make it easier for the President to go off the reservation. There comes a point when he has to ask, what do I have to lose; what can they say about me that they haven’t already? Threaten impeachment? Been there since day one.

    1. SHG Post author

      I suspect every president believes his treatment is unfair, but never in my lifetime has one been so divorced from the normative constraints we all took for granted. What’s to stop him from going full Trump?

  4. Jim Tyre

    (such as Lithwick’s Arpaio pardon suit)

    I don’t think Lithwick filed a legal proceeding, so I’m guessing you’re referring to her attire. Where does one get a pardon suit? In what sizes and colors is it available? Such a suit could be a very useful addition to one’s wardrobe.

Comments are closed.