- - Tuesday, August 10, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.

The Constitution gives me as a federal judge the power to preside over certain cases and controversies. This isn’t much, as federal cases make up only a tiny fraction of the millions of cases filed in American courts each year, with the overwhelming majority presided over by state and local judges.

The Constitution also grants me life tenure and a guaranteed salary. Although it’s popular in some circles to think otherwise, these latter two grants are features, not bugs. Both are carefully formulated to ensure that federal judges remain independent of the legislative and executive branches and insulated from the need to pander to popular opinion to secure re-election.

Our Founders thought life tenure and a guaranteed salary were appropriate for judges only because the federal judiciary was to be of such modest power and means, with zero authority to make laws. The Founders had a word for a life-tenured person with the unfettered authority to decree law and policy with a wave of a hand: king. They had just fought a war to rid themselves of one of those, so they weren’t about to crown a new host of black-robed monarchs. 



The structure the Founders settled on in Article III of the Constitution reflects the careful give-and-take that characterizes the broader constitutional design. The give was to insulate federal judges from the democratic process; the take was to limit the judiciary to presiding over cases and controversies, with the power to enter judgments binding only on the parties to the case before the courts.

The power to make rules of general applicability binding on the population as a whole — the power to make law — was completely withheld from the judiciary. That power was strictly reserved to those directly accountable to the people through regular elections.

The Founders hit this nail on the head. Time has proven that federal judges are the last people you want making important policy decisions for the nation. We are intellectual elites drawn largely from the most affluent stratum of society, sequestered in ivory-tower-like courthouses and surrounded by other lawyers and judges in the reverbiest of echo chambers.

We hold no town halls. We hold no meetings with constituents. We don’t press flesh in Main Street parades. I’d wager that, on the whole, you’d be hard pressed to find a group of people more out of touch with the ever-changing needs and sensibilities of our diverse populace. This is coming from a judge in Oklahoma City, the bluest of blue-collar cities in a heartland state.

Imagine how much worse it must be for the nine justices of the Supreme Court, cloistered in the District of Columbia, a place more disconnected from mainstream America than any place I’ve ever been.

The simple truth — and a hard truth for some — is that federal judges are federal judges not because they were touched by the hand of God and given Solomonic wisdom. We are federal judges because someone, at some time, deemed us of adequate legal acumen to read the law, manage a courtroom, and write a coherent opinion. In other words, we were chosen for our skill as lawyers. Let’s be honest: When was the last time you thought to yourself, “I’d like lawyers more involved in managing my life”?

To be sure, the federal judiciary is full of men and women who are exceptional at doing their job of presiding over cases and controversies. But the American people, and lawyers in particular, hold the federal judiciary in far too high regard when they expect judges to be all-knowing vanguards in our ever-evolving society and repeatedly call upon them to do more than the Constitution — and their skillset – allows.

This misplaced regard terrifies me because it ultimately undermines the credibility and viability of the judicial branch. Worse yet, it is born of a mythology, largely perpetuated by the lawyering class, that we want wise and benevolent judges defining our freedoms and shaping societal norms.

In all fairness, lawyers are hardly given a chance to think otherwise: They are indoctrinated into the mythology from practically their first day in law school. Law schools teach with the “case method,” in which students learn legal principles by reading judicial decisions seminal to the development of the common law. Young lawyers thus spend their formative years learning about evolving law shaped by brilliant judges debating the relative merits of this legal policy or that. Little wonder, then, that they leave law school with heroes who wear black robes.

But what of everyone else? Why has the non-lawyer population seemed so primed to embrace this myth?

Eroding confidence in the efficacy of the legislative branch may be to blame. If Congress seems paralyzed, people look elsewhere for solutions. Sometimes they look to a president willing to wield phone and pen to aggressively assert executive power to address such problems. But they soon learn that those solutions are often short-lived, evaporating as soon as the next administration takes office. 

So, they look to the remaining branch. What do they learn? They learn what lawyers figured out long ago: If you can’t get what you want through the democratic process, sue.  Because no modern society has greater respect for judicial decrees than does the United States. Article III solutions are quite good solutions indeed. The best of all is an Article III solution from the Supreme Court. Because it has nationwide jurisdiction, when it decides an issue, national uniformity is imposed with no lobbying, no legislation, no presidential signature and no turning back. 

The result of this epiphany has been an ever-increasing reliance on litigation as the silver bullet for those dissatisfied with democracy. So judges are increasingly pulled from their usual job of presiding over discrete, private disputes (a job at which they are quite good) and into the public fray on hot-button issue after hot-button issue (a job at which they are quite terrible), with predictably bad results. It is little wonder, then, that more and more Americans now count the judicial branch as the third political branch. 

As counterintuitive as it may sound, reversing this trend requires thinking less of federal judges and not more. It requires thinking more of democracy and the legislative process, and not less. 

That is what our Founders intended. It is what our Constitution demands. It is what our nation needs.

• Patrick R. Wyrick is a judge for the U.S. District Court for the Western District of Oklahoma. He previously served as a justice of the Oklahoma Supreme Court and as solicitor general of Oklahoma.

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