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Our Judicial Branch Has a Legitimacy Problem

At what point will lost trust, turn into lost consent, and what will that look like? If our states fail to use their Article V power to reestablish accountability over our federal government, they will leave an America to our children and grandchildren in which the government is their master rather than their servant.

The legitimacy of our federal courts does not come from the Constitution. It comes from our consent to be governed. U.S. citizens and government functionaries have a pact of civilized behavior, in which we grant the government powers, in exchange for assurances that those powers will not be abused. The Constitution is merely our written contract laying out the terms and conditions of that pact. As it pertains to the Article III branch of government, we agree to give the courts the power to adjudicate disputes, and they agree to defend our founding principles without bias and according to laws passed by our elected representatives. But the legitimacy of the courts has been waning, ever since judges began treating their commitment to our agreement – their oath – as nonbinding.

The problem became apparent when Supreme Court justices gave themselves a power not granted in the Constitution – the authority to find things “emanating” from the Constitution, but not actually written in it. In the 1965 case of Griswold v. Connecticut, Justice William Douglass found a right to privacy emanating from a penumbra of the Constitution – i.e. it was peeking out from behind the Constitution, but was not actually written in it.

With that precedent, the Constitution became an evolving document, changing via opinion, rather than amendment. Federal judges were suddenly empowered to skip the constitutional process for “evolving” the Constitution, and began doing so by merely ruling from the bench. Using their new-found power, they discovered a right to gay marriage (which isn’t written in the Constitution), restrictions on bearing arms (which is supposedly protected by the Constitution), and even a right for the government to censor us (which the Constitution specifically prohibits).

But the invention of penumbral reasoning was also something else. It was a constructive contract change without the consent of all parties. The Supreme Court was violating the terms of the contract applicable to it, while expecting us to continue adhering to the terms applicable to us. Our elite members of the legal profession should have known that’s not how contracts work.

Our mutual pact was further strained in 2012 when the Supreme Court decided that it could litigate as well as adjudicate cases before it. In National Federation of Independent Business v. Seblius, the Department of Justice specifically argued that the fines associated with Obamacare were not taxes. Faced with what was clearly an unconstitutional law, Chief Justice Roberts argued that the law could be Constitutional, if the fines weren’t fines, but were instead taxes. Based on his own alternative argument, he cast the deciding vote to uphold the law.

The precedent set by Chief Justice Roberts is now standard practice in the judicial branch. When prosecutors for the federal government dropped the charges against Michael Flynn, Judge Emmet Sullivan appointed his own attorney to continue the prosecution. Hence Sullivan was supervising the prosecution of a case, which he was also adjudicating.

With their ability to find unwritten laws and participate as litigants in cases before them, judges began exploring new ways to create mischief. In that environment, it was inevitable that political affiliation would become more predictive of judicial outcome than the letter of the law. The drift away from fidelity to the law gave birth to lawfare and judge shopping. Partisans not given power by the electorate need only find a sympathetic judge to bend the executive and legislative branches to their will – skipping the messy business of debate and compromise.

Litigation began to replace legislation. The practice became so widespread, that the media began identifying Judges by who appointed them (e.g. “Obama Judge Boasberg,” or “Trump Judge Cannon”).

Alarmed at the emerging public perception that his branch of government had become partisan activists, Chief Justice Roberts informed the public that we were simply wrong. He said:

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.

But denying the existence of a problem which we could all clearly see, only served to further erode public trust in the judicial branch of government, and made us question our consent for it to have power over us.

Now the judicial house of cards, built by myopic and activist judges, is collapsing under the weight of its own contradictions. Federal judges are inserting themselves into matters of government staffing, immigration enforcement, foreign aid, and even military troop deployments. District judges Brian Murphy and Wendy Beetlestone are even refusing to comply with Supreme Court rulings – Murphy on an immigration case, and Beetlestone on a religious freedom matter. The end of the road for judicial activism is becoming apparent, and it is not a healthy republic of the self-governed. It is chaos in a robe, unbound by any democratic principles.

The “Equal Justice Under Law” inscription chiseled into the front of the Supreme Court building has ceased being the guiding principle of our judicial branch. Instead, it has become a public taunt about broken terms and conditions of our contract. The actions of the Supreme Court, and the courts it presides over, have placed us in an actual Constitutional crisis – a branch of government, with authority to do things, which the self-governed no longer trust it to do.

Are we approaching a point in which the public judges the Constitution breached – requiring a massive renegotiation of terms and conditions to maintain civility? Who will undertake such a corrective action – our polarized Congress? Our President? The Constitution gives him no such power. In our current political climate, only the states have the power to remediate a government which no longer honors our pact – the Constitution.

At what point will lost trust, turn into lost consent, and what will that look like? If our states fail to use their Article V power to reestablish accountability, they will leave an America to our children and grandchildren in which the government is their master rather than their servant.

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Created:	2025-08-16 16:12 GMT
Updated:	2025-08-23 07:00 GMT
Published:	2025-08-16 16:23 GMT
Converted:	2025-11-11 12:06 GMT
Change Author:	John Green
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