So far, in his second term, Donald Trump’s biggest headaches haven’t come from the Democrats or his fellow Republicans. Nor have they come from the groups that were his biggest enemies in his first term—the media, federal bureaucrats, or the intelligence agencies.
This time around, Trump’s biggest difficulties are coming from the courts.
“The Resistance” has been celebrating the judicial branch as the tip of the spear in the effort to thwart the president’s agenda—and for good reason. In May alone, federal courts ruled against the Trump administration in 96 percent of the cases brought before them. And while that was a particularly dramatic month, the administration’s loss rate for the entire term so far still stands at a staggering 77 percent.
Nearly every one of Trump’s central campaign promises has either been tied up in the courts or blocked entirely by lone federal judges. Everything from the deportation of illegal immigrants, the enactment of tariffs, and the defunding and cutting of federal agencies have come under attack by the federal judiciary.
The battle between the Trump administration and the courts is quickly becoming the defining dynamic of this second Trump term.
It may be tempting for opponents of big government to find much of what the federal judiciary is doing commendable. After all, we’re taught in elementary school that the purpose of the judicial branch is to “check” the power of the other branches and halt government overreach.
But, like a lot of what we were taught about the federal government in school, that simple characterization of the federal judiciary is not accurate.
If the purpose of the judicial branch were really to limit the scope of the federal government to the handful of tasks laid out in the Constitution, one would only have to glance at the behemoth in Washington DC—intervening in every aspect of our lives while running a global empire—to conclude that the judicial branch has failed more spectacularly than any other group of watchdogs in history. And yet, the branch continues on as if it’s all working great, which suggests that the federal judiciary is actually serving a different purpose.
What might that be? Well, as scholars like Murray Rothbard have pointed out extensively, there is a much better case to be made that the true purpose of the judicial branch has been the precise opposite of what it claims. That its role has actually been to help the federal government transcend the limits placed on it in the original Constitution.
That may sound counterintuitive, but it’s not the first time limits on state power have been turned around and used to help states expand past those limits. As Rothbard explains in Chapter 3 of For a New Liberty, the concept of the “divine right of kings” actually began as a doctrine promoted by the church to limit state power.
The idea was that a king could not do anything he wanted because he was constrained by divine law. But as absolutism began to take hold in Europe, kings flipped the concept around to mean that the very fact that they were kings meant their rule represented the will of God. So therefore, anything they did necessarily had God’s approval because otherwise, he wouldn’t have made them kings.
Rothbard goes on to explain how parliamentary democracy, utilitarian liberalism, and every other device devised to check state power has eventually come to lose its original purpose and instead, as Bertrand de Jouvenel put it, “to act merely as a springboard to Power.”
The same has happened with the federal judiciary and its task to interpret the constitutionality of federal government programs. Because as Rothbard notes, “If a judicial decree of ‘unconstitutional’ is a mighty check on governmental power, so too a verdict of ‘constitutional’ is an equally mighty weapon for fostering public acceptance of ever greater governmental power.”
In other words, while federal courts are defined in the public mind by the few times they have blocked government actions, their more enduring contribution to American history has actually been helping the continuous growth of the federal government by giving it their stamp of legitimacy.
One of the major turning points in the judiciary’s transition from a check on power to an enabler of power was the Supreme Court’s ruling on FDR’s New Deal. The Court was hesitant and refused to approve the president’s actions for two whole years—likely because the New Deal programs were so obviously well outside the role of the government as laid out in the Constitution.
But then, after some threats from FDR that he would pack the Court, the justices gave their full approval and defined the entire New Deal as presented by Roosevelt as “constitutional.” The federal government’s enormous and blatantly illegal power grab was, from then on, to be considered entirely legitimate.
That dynamic has only accelerated in the decades since, especially as the progressive movement gained prominence. As Roger Pilon put it, while the authors of the Constitution were fairly explicit that any federal government action not directly authorized by the Constitution was forbidden, progressives “turned that on its head” and reasoned that any federal government action not explicitly forbidden in the Constitution is authorized.
Today’s federal courts are not basing their rulings on the same text of the Constitution that you can read on the National Archives website. They use what’s called the Constitution Annotated, which is a much longer document containing both the Constitution and annotations with all the previous federal court decisions. Federal court decisions which, like the New Deal ruling, have been increasingly driven by political considerations and the progressive interpretation of the founder’s intent.
That is how we get government programs that are obviously well beyond the limits of the original Bill of Rights, like the Federal Reserve, restrictions on firearm ownership, the mass imprisonment of Japanese-Americans, the FBI, the Patriot Act, Obamacare, major undeclared wars, and much, much more. Not in spite of the efforts of the judicial branch, but because of them.
That said, there’s some important nuance to consider when analyzing how the established political class, or establishment, has actually gone about expanding its power. They have not tried to expand the federal government as rapidly as possible, nor are they aiming for the federal government to take over every single aspect of American life. If that happened, they wouldn’t get to fully enjoy all the benefits of their ill-gotten profits.
It is better to think of the establishment as a coalition of groups that are committed to a specific rate of government growth. It’s a rate that is steady and unyielding during relatively normal times but also fast and ferocious during periods of crisis. There is some dissension—establishment Democrats want the rate of growth to be a bit faster, while establishment Republicans want the rate of growth to slow slightly (never reverse). But overall, that trajectory of government growth, which continues steadily and then ratchets up during crises, is the status quo that the establishment is committed to protecting against anti-establishment forces from all sides of the political spectrum.
And that is the status quo that the federal judiciary, which is an integral part of the American political class, is trying to protect against the Trump administration. Because Trump’s attempts to change the status quo in ways that actually benefit the American public for a change have ranged from excellent, like the attempts to cut federal agencies, to terrible, like the raising of import taxes, the rulings from federal courts cannot simply be considered as uniformly good or bad.
But it is vitally important to recognize that the establishment judges and justices who make up the federal judiciary are not, in fact, trying to prevent government overreach, as they claim. They are trying to stop Trump from threatening the establishment’s ability to continue pursuing the government overreach they want in a way and at the pace that benefits them.
Even if they occasionally rule in ways that opponents of big government may like, it is a mistake to view the judicial branch as an ally. They are anything but.
