By six votes against three, those of the six conservative judges against the three progressives, the Supreme Court of the United States decided to limit, this Friday, the power of federal magistrates in their ability to block, at the national level, the decisions of the executive that they consider illegal. This vote could go relatively unnoticed outside legal circles, but it is far from trivial. He signed a turning point in the delicate balance between political power and judicial power. For several decades, these famous nationwide injunctions, these national injunctions thanks to which a single federal judge could suspend throughout the territory a measure of the executive, had become a formidable weapon. They blocked whole sections of presidential policies, whether it be the migratory decrees of Donald Trump or, before him, of the provisions of the Obamacare.
These judicial decisions, often rendered in the name of the protection of fundamental rights, had nevertheless ended up fueling increasing concern. In the United States as in France, and more broadly in a number of Western democracies, part of the people is now wary of the “government of judges”. Many believe that the judiciary encroaches on the area reserved for elected officials, that it is too often replaced by the general will. Justice, in the collective imagination, sometimes appears as a distant body, made up of unclean elites, cut off from everyday realities and quick to thwart political choices, however from the ballot boxes.
It is on this very real resentment that Donald Trump built a large part of his speech. Since his beginnings, he has denounced a judiciary which, according to him, has exceeded his prerogatives and has slowed the implementation of the popular will. For his supporters, to limit the power of judges is to defend the sovereignty of the people against institutions suspected of ideological activism. Seen from France, it would be too simple to sweep this criticism with a backhand, as it touches a sensitive string of democracy: the legitimacy of those who decide in the name of law.
But Friday’s decision also raises other questions. Because to restrict the ability of judges to immediately block a measure deemed to be deemed illegal is to accept that it produces its effects, sometimes irreversible, while the case walks to the Supreme Court. It is also, in fact, giving more latitude to a president wishing to act quickly and strong, without always respecting the constitutional framework.
How to maintain the fragile balance between popular sovereignty and rule of law?
Trump has a wider room for maneuver to carry out his most radical promises. Already, his advisers work on projects aimed at strengthening the presidential authority, reorganizing the federal administration and limiting the independence of certain institutions. In this context, the decision of the Supreme Court appears as an additional part in a puzzle where the executive power could find itself less supervised than it has been for decades in the United States.
The whole question is there, in America as in Europe: how to maintain the fragile balance between popular sovereignty and rule of law? How can we ensure that justice does not become a parallel government, without depriving it of the means of preventing illegality or arbitrariness? Democratic discomfort is precisely due to this tension: on the one hand, the legitimate requirement that the people governing; On the other, the no less imperative need to protect freedoms, even against the majority. It is the same debate in France with the role of the Constitutional Council.
Criticism of the “government of judges” cannot be swept away with a back of hand, any more than one cannot applaud without reservation the reduction of their powers. Because it is democracy itself that is on the crest line. Between the excess of a judicial power which would replace politics, and that of an executive disadvantage of any control, there is no simple, or simplistic response.
The decision of Friday, under its technical outside, reminds us of this fundamental truth: law is not only a matter of specialists, but must remain a major political and philosophical debate, where the border between the general will and the safeguards necessary for any democracy is played out. And if we understand that the politician wants to regain control, we must ensure that the victory of the people does not become that of a single man.
