The Power of “So-Called Judges”

The federal judiciary has been quite busy lately. In the past two years, lower federal courts have blocked the Trump administration from enforcing presidential directives on a string of topics — the travel ban, funding for sanctuary cities, transgender individuals in the military, and the rescission of DACA. How long, some commentators wonder, will the executive branch continue to accept these defeats? This brief essay, which is part of a symposium on judicial independence, makes a few observations. First, there is today a strong bipartisan norm that federal executive officials must comply with federal court orders. But that norm is of relatively recent vintage: it dates only from the mid-twentieth century. That fact alone underscores the fragility of this aspect of judicial independence. Second, notwithstanding that fragility, the essay argues that there are good reasons to expect continued compliance by the federal executive branch, at least for the foreseeable future.