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Checks and Balances: The New Defense of Democracy

Below is another installment in our Trends in the Law series. It is Part Two of a blog written about the Supreme Court. Part One was titled “The Highly Partisan High Court” and focused on the increased politicization of the U.S. Supreme Court and the impact this has on its decisions and their credibility. Part Two below focuses on the recent appointment of the Acting Attorney General, his views regarding the federal judiciary, and the role the Supreme Court plays in a democracy.


Election Day had barely passed, and numerous contests were still unresolved when President Trump demanded the resignation of his beleaguered Attorney General Jeff Sessions. To replace Sessions, Trump went outside the established chain of command at the Department of Justice and appointed Matthew Whitaker as Acting Attorney General. Whitaker was Sessions’ Chief of Staff, and therefore was not next in the line of succession. This fact is not the only reason he is a controversial choice, however.

Whitaker’s opinions on a range of subjects place him far outside the mainstream, and make him a questionable choice for Acting Attorney General. The most discussed opinion is Whitaker’s view that the Special Counsel’s Russia investigation is not constitutional. As Acting Attorney General, Whitaker is now overseeing that probe, and his belief that it is illegitimate is problematic at best. Many people speculate that it is precisely this view that qualified him for the appointment in President Trump’s eyes.

Equally controversial and arguably more troublesome are Whitaker’s views on the role of the federal judiciary, with which, as Acting Attorney General, he will be intimately involved. When Whitaker sought the Republican nomination for senator from Iowa in 2014, he stated that he shared the belief of some conservatives that the federal judiciary has too much power over public policy. Whitaker criticized the bedrock of U.S. jurisprudence, judicial review, that was established in the landmark case of Marbury v. Madison in 1803. In doing so, Whitaker challenged the very principle—one that has existed for over 200 years—that enables the judiciary to be a co-equal branch of government. By claiming that federal courts should not have the power to strike down legislative and executive acts, Whitaker and those of like belief are saying that they believe in an inferior federal court system, one that would be deferential to the other two branches of government.


While this belief in an inferior federal judiciary is consistent with Whitaker’s advocacy for an almost unchecked executive power, it is inconsistent with his stated criticisms of the Supreme Court’s failure to strike down certain key historical cases. For instance, Whitaker has said that the Supreme Court’s failure to strike down all New Deal cases (during FDR’s presidency) that were expansive of the federal government and its failure to strike down the Affordable Care Act and the individual mandate (during Obama’s presidency) were critical errors. Laurence Tribe, a Harvard Law School Constitutional Law Professor, has called this an “internally contradictory” and “ignorant philosophy” that is dangerous for the country.


Judicial review is not simply an esoteric legal doctrine; it is necessary for democracy. The federal judiciary’s power of review allows laws that are inconsistent with the U.S. Constitution to be revised or expunged without a full act of the legislature. (State courts also have this power with respect to reviewing state laws for consistency with state constitutions.) Furthermore, judicial review allows the judiciary to be a co-equal branch of the government, providing a crucial check and balance on the legislative and executive branches. Without judicial review, Congress could pass any law that received the requisite number of votes. It is the Courts that keep majority rule from degenerating into majority tyranny.

Similarly, imagine if there were no checks on executive power, no way to review executive orders. Without judicial oversight of the executive branch, a President and his/her administration could legislate from the Oval Office on a whim. This would not be democracy; it would be a monarchy at best and tyranny at worst. The generation of Founding Fathers had just cast off the English monarchy and the tyranny of King George III. They certainly did not intend to create a system that would allow such a rule and ruler to take hold. That is why a strong, independent judiciary that is a co-equal branch of government is the only way to view the role of the courts, and the only way to preserve democracy.


Put simply, judicial review gives the judiciary the power to strike down laws that violate such fundamental rights as freedom of speech, freedom of religion, due process, civil rights, and more. In a day and age where there is a trend toward expansion of executive power at the expense of democracy—as there is in some European and Latin American countries—protecting the Supreme Court’s ability to provide a check and balance to the executive branch must be a high priority.

Interestingly, a little over a dozen conservative lawyers announced on November 13, 2018, the formation of a group called “Checks and Balances.” The group’s mission statement declares that its members believe in the rule of law, the power of truth, the independence of the criminal justice system, and the necessity of civil discourse. Members include George Conway, Constitutional legal scholar and husband of White House counselor Kellyanne Conway; Tom Ridge, former Homeland Security Secretary under President George W. Bush; Peter Keisler, former Acting Attorney General, and John Bellinger, former State Department legal advisor. In an interview about the group, Ridge stated that the issue most holding the group together is its dedication to the Constitution and the rule of law. The group’s formation and release of its mission statement comes two days before the national annual convention of The Federalist Society, another conservative legal group, to which some of the members of “Checks and Balances” also belong.


If you or someone you know has suffered a violation of their civil rights, contact Dave Thomas at The Thomas Law Firm for a free evaluation of your legal rights.

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