POLITICS AND THE JUDICIARY
Judicial Independence, Political Pressure, and the Rule of Law
Presented by the Hon. William Wagner (Ret.), WFFC Distinguished Chair for Faith & Freedom
at Michigan State University College of Law — Federalist Society Debate - October 21, 2026
I. INTRODUCTION: THE QUESTION BEHIND THE QUESTION
Good afternoon.
It is a pleasure to be here at Michigan State University College of Law. I am grateful to the Federalist Society for inviting us to consider a question that reaches the very heart of our constitutional Republic.
Is the American judiciary truly independent of political pressure?
Or do the President, Congress, and the political forces surrounding them exercise far more influence over judicial decisions than we generally acknowledge?
My answer begins with an important distinction. Political pressure is not the same thing as political control.
The fact that a President criticizes a court does not establish that the court surrendered its independence.
The fact that Congress exercises its constitutional authority over judicial appointments does not establish that the judiciary has been compromised.
And the fact that a judicial decision results in political consequences does not establish that the decision was politically motivated or wrongly decided.
We must distinguish political controversy from unconstitutional interference.
We must distinguish the lawful exercise of constitutional authority from its imprudent exercise. And most importantly, we must distinguish attempts to influence judicial decisions from evidence that those attempts actually succeeded.
But this afternoon, I want to raise a second question. One that I believe is every bit as important.
What happens when the political pressure influencing judicial decisions comes not from Congress or the President—but from the judges themselves?
What happens when judges, protected from political accountability by Article III, allow their own political preferences to displace the Constitution and laws they have sworn to uphold? Who protects the Constitution from that kind of political influence? These are two sides of the same constitutional problem.
And they lead to my central proposition this afternoon. The entrance to your law school points to the Rule of Law. Judicial independence is indispensable to the rule of law. But independence without fidelity to law risks replacing the rule of law with the rule of judges.
II. THE CONSTITUTIONAL DESIGN: INDEPENDENCE WITHIN CHECKS AND BALANCES
To understand why, we must begin where constitutional analysis should always begin.
With the Constitution itself.
The Framers did not create three branches of government and then erect impenetrable walls between them. They established a system of separated powers, joined by constitutional checks and balances. Article I vests legislative power in Congress. Article II vests executive power in the President. Article III vests judicial power in the federal judiciary to decide cases and controversies arising under the constitution and laws of the United States. Each branch holds a constitutional role and possesses authority the others do not. Together they operate within a constitutional structure designed to prevent the concentration and abuse of governmental power.
James Madison understood the problem.
In Federalist No. 51, he explained that the great difficulty in framing government administered by human beings is that government must first be enabled to control the governed, but then be obliged, to control itself.
The Framers understood human nature.
They anticipated ambition.
They anticipated disagreement.
And they certainly anticipated political conflict.
Their constitutional solution was not to eliminate politics from government. It was to place governmental power under law. Consider the judiciary. The President nominates federal judges. The Senate confirms or rejects those nominations. Congress establishes inferior federal courts. Congress determines the number of Supreme Court justices. And Congress possesses substantial authority concerning federal jurisdiction and impeachment. We should not view these as threats to judicial independence because they are part of the constitutional design.
At the same time, Article III provides protections essential to independent judicial judgment. Federal judges hold office during good behavior. Their compensation cannot be diminished while they remain in office. Why?
Because a judge must be free to rule against the President who nominated that judge.
Against the senators who supported confirmation.
Against the political party that celebrated the appointment.
And against the public majority demanding a different result.
Alexander Hamilton understood this in Federalist No. 78. The judiciary possesses neither the sword nor the purse. Its distinctive function is judgment. But notice something important. Hamilton's defense of judicial independence presupposes a judiciary exercising judgment, not political will. And that distinction brings us to what I believe is the most important principle in this debate today.
III. JUDICIAL INDEPENDENCE COMES WITH JUDICIAL RESPONSIBILITY
Several years ago, I had the privilege of coauthoring an article published in The Western Australian Jurist, entitled The Virtue of True Meaning and the Tyranny of the Few: A Remonstrance Against Politically Unaccountable Judicial Policymaking. The article addressed a fundamental question. The judiciary must be independent. But independent to do what?
Independent to enforce the Constitution?
Absolutely.
Independent to protect the rights of the people against unconstitutional governmental action?
Certainly.
Independent to interpret and apply statutes according to their governing legal meaning?
Of course.
But independent to impose policies that judges personally believe would be better than those adopted through constitutionally authorized processes?
No.
Judicial independence is not a license for judicial supremacy. As I explained in that article, constitutionally instituted independence carries with it constitutional responsibility. Judges must exercise judgment based upon what the Constitution or statute says, not what the judge wishes it said.
That distinction is fundamental.
Congress possesses legislative power.
The President possesses executive power.
The judiciary possesses judicial power.
Those powers are not interchangeable.
The Constitution does not authorize judges to exercise legislative power because they disagree with congressional policy….or executive power because they do not like a presidential policy. Nor does it authorize judges to amend constitutional meaning because they believe society would benefit from a different constitutional rule.
The Constitution establishes a process for legislation.
It establishes a process for constitutional amendment.
And it establishes a judiciary to decide cases according to law.
The American people did not entrust judges with the authority to replace those constitutional processes with their personal preferences.
Now, I want to be clear. I am not suggesting that judicial restraint requires automatic deference to Congress or the President. Quite the opposite.
When Congress enacts a law that violates the Constitution, judges must be prepared to say so.
When the President exceeds constitutional authority, judges must enforce the constitutional boundary.
When government violates your constitutionally protected rights, judges must fulfill their responsibility to apply the superior law of the Constitution.
That is not improper judicial activism. That is the judicial duty.
But the converse is equally true.
When a judge invalidates a constitutional law because the judge personally dislikes its policy, the judicial duty has been compromised.
And when a judge upholds an unconstitutional law because the judge fears political retaliation, the judicial duty has again been compromised.
In both instances, something other than law controls the outcome.
The constitutional obligation is fidelity to law. Whether the result is politically popular—or politically unpopular.
The Anti-Federalists understood the danger of an independent judiciary exercising power without sufficient accountability. Thomas Jefferson later warned of a Constitution becoming like wax in the hands of judges, shaped according to judicial preference. Hamilton emphasized the necessity of judicial independence. Both concerns deserve our attention. Because judicial independence and judicial responsibility are not competing principles. They are mutually reinforcing constitutional obligations.
And I would express that relationship this way. The judiciary must be independent enough to say no to the President and Congress -- and disciplined enough to say no to itself. Keep that principle in mind as we consider three historical controversies.
IV. THREE LESSONS FROM AMERICAN HISTORY
First: Roosevelt's Court-Packing Proposal
In 1937, President Franklin Roosevelt was frustrated by Supreme Court decisions invalidating important left-leaning elements of his New Deal agenda. His administration proposed legislation that could have increased the Supreme Court's membership by as many as six justices.
Was changing the Court's size inherently unconstitutional?
No.
The Constitution establishes one Supreme Court, but it does not prescribe nine justices.
Congress determines the Court's size by statute.
But constitutional authority does not resolve every question of constitutional prudence. There is a profound difference between changing the Court's size to address legitimate institutional needs and changing it to secure politically preferred judicial outcomes. The latter threatens the independence Article III was designed to protect.
But did Roosevelt's proposal actually cause the Court to change its decisions? That is a different question.
If you’ve taken Constitutional Law, you have heard the expression, the switch in time that saved nine. Yet the historical chronology complicates that familiar explanation.
Justice Owen Roberts cast his decisive conference vote in West Coast Hotel v. Parrish in December 1936. Roosevelt did not publicly announce his court-packing proposal until February 1937. Scholars continue to debate the broader relationship between political pressure and the constitutional developments of that period. But we cannot responsibly claim that Roosevelt's announced plan caused Roberts to change that vote when the vote preceded the announcement.
Political pressure was real.
The Court's jurisprudence was changing.
But correlation is not causation. And constitutional analysis must respect that distinction.
Second: The Merrick Garland Nomination
In 2016, President Obama nominated Merrick Garland to the Supreme Court. The Republican-controlled Senate declined to advance the nomination. No confirmation hearing. No floor vote. The nomination expired.
Was the Senate constitutionally required to conduct a hearing or hold a vote? The Constitution does not impose either requirement. The Senate possesses substantial discretion in exercising its advice-and-consent authority.
But whether that authority was exercised wisely, consistently, or in a manner that strengthened public confidence is a separate question.
The controversy became more complicated in 2020 when the Senate proceeded with the nomination of Amy Coney Barrett. Republican leaders defended the distinction in part by emphasizing that, unlike 2016, the President and Senate majority belonged to the same political party. Critics challenged the consistency of that explanation with broader election-year arguments made four years earlier.
While those competing positions warrant discussion, here is the constitutional principle:
The Senate possesses authority to influence who becomes a judge. It does not possess authority to dictate how that judge must decide a case.
The distinction is essential.
Third: The Brett Kavanaugh Confirmation
In 2018, the nomination of Brett Kavanaugh became the subject of extraordinary political controversy following serious but unsubstantiated allegations of sexual misconduct, which he denied. The Senate conducted additional proceedings, and a supplemental FBI background investigation was requested.
The controversy exposed the intense political pressures surrounding judicial confirmation. The Senate has a constitutional responsibility to evaluate nominees. Serious allegations deserve serious examination.
But allegations must be evaluated according to evidence.
Not political convenience.
Not anticipated judicial outcomes.
And not the identity of the President who made the nomination.
The confirmation process should protect the integrity of the judiciary while treating allegations and denials with appropriate seriousness. But we must again distinguish perception from proof. The Kavanaugh confirmation was intensely political. That fact does not establish that Justice Kavanaugh subsequently decided cases according to partisan allegiance. That is a different claim. And it requires different evidence.
These three controversies teach us something important.
Political power can be used to pressure the judiciary.
Political power can determine who serves on the judiciary.
And political conflict can damage public confidence in the judiciary.
But none of those facts, standing alone, proves that judges have surrendered their independent judgment.
V. THE DEEPER DANGER: POLITICS WITHIN THE JUDICIARY ITSELF
Now let me return to the question with which I began.
What happens when political influence comes from within the judiciary? What happens when judges allow their own ideological commitments to determine constitutional meaning?
Article III can protect a judge from the President. It can protect a judge from Congress.
But Article III cannot, by itself, protect the Constitution from a judge who abandons the discipline of faithful interpretation.
That responsibility must be exercised by the judge. The judicial oath matters. The text of the Constitution matters. The constitutional allocation of powers matters. And the distinction between judicial judgment and political preference matters.
I recognize that constitutional interpretation is not always easy. Reasonable jurists can disagree. Precedent can create difficult questions. Historical evidence may require careful examination. And not every disagreement between judges demonstrates political motivation.
But the existence of difficult constitutional questions does not authorize judges to abandon the search for legally correct answers.
The Constitution is not a blank document upon which each generation of judges may write its preferred policies.
Its provisions hold legal meaning. And that meaning must be faithfully discerned and applied.
Our founding constitutional tradition recognizes rights that precede government. The Declaration of Independence affirms that human beings possess unalienable rights and that governments are instituted to secure them. The Constitution then establishes a government of delegated and limited powers.
The judiciary plays an indispensable role in preserving that constitutional order.
But the recognition of preexisting rights does not confer unlimited authority upon judges to create constitutional rules according to their personal political or moral preferences. The judge's responsibility is to exercise the judicial power actually entrusted by the Constitution.
That requires intellectual discipline.
It requires humility before the law.
It requires courage when the law produces an unpopular result.
And sometimes, it requires something even more difficult. The willingness to reach a legal conclusion that the judge personally dislikes. A judge's fidelity to law is tested most clearly when the law requires a result the judge would not personally choose. That is judicial responsibility. And without it, judicial independence loses its constitutional purpose.
VI. HOW DO WE KNOW WHEN POLITICAL PRESSURE HAS INFLUENCED A JUDGE?
Let me return directly to this afternoon's debate question.
· Does political pressure influence judicial decision-making?
Political actors certainly attempt to influence the judiciary.
History establishes that.
But attempts to influence and demonstrated influence are not the same thing.
If a President criticizes a judicial decision, that establishes criticism.
If senators threaten to expand the Supreme Court, that establishes a political threat.
If activists and advocacy organizations mobilize opposition to a nominee, that establishes political activism.
But none of those facts, standing alone, establishes that a sitting judge changed a legal conclusion because of political pressure.
To demonstrate that, we need evidence.
Contemporaneous statements.
Reliable historical records.
Documented changes in judicial reasoning.
Or empirical analysis capable of distinguishing political effects from other explanations.
Even then, caution is necessary. Different cases present different facts. Different arguments may reveal weaknesses in earlier reasoning. And judges sometimes reconsider precedent for legitimate legal reasons. We cannot assume that a judicial decision is politically motivated simply because we disagree with its outcome. That assumption can itself become a means of undermining judicial independence.
If every judicial decision favoring one political constituency is characterized as partisan, we surrender the very distinction between law and politics that constitutional government requires us to preserve.
The better inquiry is whether the decision can be defended through faithful legal reasoning.
Does it respect the Constitution's text?
Its structure?
Its governing history?
Applicable precedent?
And the proper allocation of governmental authority?
These questions will not eliminate judicial disagreement. But they focus that disagreement where it belongs. Upon law.
VII. CONSTITUTIONAL ACCOUNTABILITY: REJECTING TWO EXTREMES
So where does this leave us?
I believe we must reject two dangerous extremes.
The first is the idea that the political branches may legitimately pressure judges to produce politically preferred decisions whenever those branches possess sufficient institutional power. That would compromise the independent exercise of judicial judgment.
The second is the idea that judicial independence places the judiciary beyond meaningful constitutional limits or accountability. That would compromise the separation of powers.
Neither position reflects our constitutional design.
Congress possesses legitimate powers affecting the judiciary.
The President possesses legitimate appointment and executive powers.
The judiciary possesses independent judicial authority to decide case and controversaries arising under the constitution and laws of the United States.
Each must respect the constitutional boundaries governing its exercise of power.
Judicial misconduct may warrant constitutionally appropriate accountability.
Congress may legislate within its constitutional authority.
The people may amend the Constitution through Article V.
And courts must enforce constitutional limitations against the political branches when cases properly require them to do so.
But constitutional checks must not become instruments for dictating judicial outcomes.
Nor may judges transform their independence into an authority to impose their own political will.
The Framers understood that constitutional government would involve conflict. They did not expect the branches always to agree. They did not promise that constitutional controversies would be comfortable. They established something far more important. A constitutional order in which governmental power is subject to law.
VIII. CONCLUSION: THE RULE OF LAW, NOT THE RULE OF JUDGES
Let me close with this thought.
The American constitutional system does not promise a judiciary isolated from politics.
It promises something more demanding.
A judiciary independent of political control.
A judiciary faithful to the Constitution.
A judiciary willing to protect constitutional liberty even when doing so is unpopular.
And a judiciary disciplined enough to recognize that the authority to interpret law is not the authority to rewrite it.
The President must not dictate judicial outcomes.
Congress must not intimidate judges into political obedience.
And judges must not substitute their own political preferences for the law they have sworn to uphold.
The obligations are reciprocal. The political branches must respect judicial independence. The judiciary must respect the constitutional limits of judicial power. Both are essential to ordered liberty.
So, is the judiciary free from political pressure?
Of course not.
No institution composed of human beings can be entirely insulated from the political world in which it operates.
But the constitutional question is not whether political pressure exists.
The question is whether that pressure controls the exercise of judicial judgment.
And the equally important question is whether judges themselves possess the constitutional discipline to exercise judgment rather than political will.
The judiciary must be independent enough to say no to the President and Congress.
And disciplined enough to say no to itself.
Judicial independence is indispensable to the rule of law. But independence without fidelity to law risks replacing the rule of law with the rule of judges. And in a constitutional Republic founded upon the principle that governmental power is delegated, limited, and accountable— No branch of government may stand above the Constitution.
Not Congress.
Not the President.
And not the judiciary.
