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Don’t Count on the Supreme Curt to rein in an unlawful Administration

Let’s hope the furor over this presidency doesn’t come to this: Impeachment Watergate style – a lengthy, arduous, shameful set of revelations and disputes with an outcome ultimately influenced by a Supreme Court decision against President Richard Nixon.

Besides such national trauma there is another little-known unsettling dimension to consider:

“It is a commonplace of American civics to view each of the three branches of our government as a check on the other two. Many Americans therefore look to the judiciary to rein in executive action when it exceed lawful bounds …  The judicial history of the past two centuries suggests that when the Court does respond [rarely] it may very well duck the substantive issues and defer to executive authority.”

That’s the expert opinion of Jed S. Rakoff, U.S. District Judge for the Southern District of New York, in his “Don’t Count on the Courts” commentary in the April 5th edition of The New York Review of Books  

[Access to the article via link is partial without subscription. The following excerpts beyond the link copy are from our subscription. The publication is well worth subscription.]

Judge Rakoff points out that “arguably, the most defensible of these exclusions from judicial interference with executive action relates to the president’s exercise of his war powers.” Other defenses, including the derivative, “national security”, might well be “standing” of the plaintiff or the court’s reluctance to deal with a case raising the nebulous definition of a “political” question.

Fast forwarding from the 1803 relevant Marbury vs. Madison case, (in which the court protected a president’s action) Judge Rakofff concludes:

“… exceptions to judicial deference to the executive are, however, few and far between. It seems fair to predict that in the absence of more frequent and meaningful judicial review, presidents will be tempted to exceed their constitutional powers in order to realize their agendas… The Founding Fathers designed the Constitution in such a way that a wholly independent judiciary could, without fear or favor, enforce it against the legislature, but even against the president of the United States. It would be a tragedy if tis constitutional design continued to be unrealized.”


Tragedy, indeed.