America’s Imperial Judiciary

American democracy continues to unravel in ways that would have surprised Alexis de Tocqueville

“Hidden at the bottom of the soul of the American lawyers,” said Alexis de Tocqueville, perhaps the keenest observer of American democracy, is “a great repugnance to the actions of the multitude, and a secret contempt of the government of the people.”

Far from being a bad thing, for Tocqueville, at least, that secret contempt was a valuable tool. A necessity, even.

An aristocrat by birth, Tocqueville knew democracy was inevitable. There was to be no return to the way things were before the American and French Revolutions. And yet, he believed, the aristocratic principle had to be retained somehow if politics were not to descend into mob rule and tyranny.

Tocqueville was, after all, the man who coined the phrase, “the tyranny of the majority.” Recent events in his native France had shown him exactly what could go wrong when the errors and passions of the common man were allowed to run wild.

America, he saw, had taken at least three precautions against a Transatlantic repeat of the bloody Terror: “the establishment of two chambers, the governor’s veto, and above all the establishment of judges.”

The judiciary, with their secret contempt for the common man, not to mention their education, habits and tastes, were the closest America could come to a native aristocracy: a class apart.

Only the judges could be expected to act in the interest of the common good, even when the common will pointed in the opposite direction. The judges stood for order, form, tradition, hierarchy, respect, and, most of all, obedience to principle.

A mature observer can at least agree, I hope, that a healthy, functioning democracy needs checks and balances. Tocqueville was definitely right about that.

America in 2026 is not a healthy, functioning democracy. But Tocqueville’s great fear, mob rule, has not been realised. Instead, we’re seeing exactly what can go wrong when the aristocratic principle goes unchecked—a possibility Tocqueville does not seem to have anticipated.

Judicial contempt for the will of the American people, the executive powers of the President, and indeed the law itself, is now running out of control, and there seems to be no way to stop it.

I’ve written about this before, last year, with regard to the ongoing saga of so-called “nationwide injunctions” and the Trump administration’s fruitless attempts to deport “Maryland Man” Kilmar Abrego Garcia—a human trafficker and gang member from El Salvador who is in the US illegally.

Despite being whisked away to El Salvador’s notorious CECOT prison, where he belongs, in the early days of Trump’s new term, Garcia remains in the US, a year later.

The Supreme Court eventually ruled on nationwide injunctions, finding in a majority decision that local judges were overstepping their authority, bigly. In a much-publicized comment, Justice Amy Coney Barrett—a Trump appointee—savaged Justice Ketanji Brown Jackson for supporting this obvious judicial overreach, claiming she wanted to substitute an “imperial judiciary” for an “imperial presidency.”

Strong words, and a powerful defense of executive power.

In truth, however, Justice Barrett has now declared herself part of the very “imperial judiciary” she decried, by voting to strike down the President’s flagship tariff policy.

It’s now clear that every court in the land, from the circuits to the highest court of appeal, are prepared to exercise undue power, to forego precedent and law, to derail President Trump’s agenda.

In a 6-3 ruling on Friday, with Justices Kavanaugh, Thomas and Alito dissenting, the Supreme Court ruled that all of President Trump’s tariffs enacted under the auspices of the International Emergency Economic Powers Act (IEEPA) are illegal.

A scorching dissent from Justice Kavanaugh laid bare some of the consequences of the decision, as well as its complete incoherence.

Kavanaugh warned of “serious practical consequences in the near term.”

“One issue will be refunds. Refunds of billions of dollars would have significant consequences for the U.S. Treasury. The Court says nothing today about whether, and if so how, the Government should go about returning the billions of dollars that it has collected from importers. But that process is likely to be a ‘mess,’ as was acknowledged at oral argument,” he wrote.