Whenever a president undertakes substantial policy changes or encourages legislation to enact those changes, he runs the risk of being labeled dictatorial and having his actions curtailed by the judiciary.
Since this is happening with Trump, we are seeing a resurgence of the debate on whether the courts should be totally independent and have absolute power to approve or disapprove executive and legislative actions.
The case for judicial independence was made, quite eloquently, by Arizona Supreme Court Justice Clint Bolick in a March Real Clear Politics op ed.
However, judicial independence should not be absolute. It should be tempered by the reasonable amount of moderation that results from having three equally powerful branches of government, without any of them being able to exercise complete control over the others.
Justice Bolick characterized three tactics as being highly dangerous. He was quite right regarding two of those tactics, but wrong about the third.
- Defying court orders. There is no doubt that this behavior is totally unacceptable. We have in place proper procedures for dealing with this, including the appeals process.
- Arguing that the president has the power to define his own constitutional authority. This goes together with defying court orders, and it is a flawed argument.
- Impeaching judges. Characterizing this tactic as highly dangerous is a substantial overreach by Justice Bolick. In most jurisdictions, judges are appointed for life and the only way to address misbehavior is via the impeachment process. Even so, the number of successful impeachments has historically been quite low.
Justice Bolick points out that there is a procedure for replacing bad judges. The voters can elect presidents and governors that will appoint good judges and elect members of the legislature that will confirm those judges. But this process can take years, thereby allowing rogue judges to continue their disruptive activities.
Fortunately, in Arizona we have a system that, while not perfect, is regarded by most citizens to be quite adequate. Judges and justices in four counties (Coconino, Maricopa, Pima, and Pinal) are appointed and subject to periodic elections in which voters determine whether to retain them or not. The rest of the counties simply elect their superior court judges. Two incidents in 2024 brought this into very sharp focus.
First, there was a well-funded and well-organized campaign to vote out two Supreme Court Justices, Clint Bolick and Kathryn King. The reason for removing these two justices was not that they had done any thing wrong, but that they had participated in a ruling that disagreed with the promoters of the campaign. Clearly there was no logical reason to remove these individuals.
The system worked. Despite lots of effort and substantial funding, the voters voted overwhelmingly to retain both justices. The current system worked.
Second, on the ballot there was Proposition 137. If approved, this proposition would have created a situation very similar to what Justice Bolick has advocated. Had that proposition passed, we would have had a situation in which justices would no longer be subject to periodic voter review. It would have created the ultimate judicial independence. Again, the system worked. The voters rejected Proposition 137 by the overwhelming margin of 77.67% to 22.33%.
The main take away from all this is that Arizona voters want judicial independence, but want it with reasonable checks and balances.