Who judges the judges?

President Trump and his administration continue to be administratively harassed by a judiciary that is destabilizing the constitutional basis of our government, and making a mockery of law in the process.

Harvard Law Professor Adrian Vermeule writes somewhat surprisingly in this week’s New York Times, that “someone is defying the Supreme Court and it isn’t President Trump.”

Vermeule describes how district court judges “have almost no accountability; they are like feudal lords who lay down the law in their local courts. If they are reversed, at least they will have stymied for some time the implementation of presidential policies they find objectionable.”

The details of his argument can be read in the article.

What I would like to point out is a larger administrative or management question: who judges the judges? 

That is, what can our form of government tell us about rogue, effectively outlaw courts that have decided to use their position as a partisan policy mechanism, beyond appropriate judicial behavior bounded by a judicial oath in a court system with circumscribed authority?

As in all things legal, the answer is subject to some uncertainty.

This is a complicated topic, but I’d like to point to just two areas that seem like they should carry more weight in how we manage our federal courts.

One is the Supreme Court itself, in the roles and leadership responsibilities of the Chief Justice.  The current justice serving in that capacity continues to avoid controversy, and back away from making tough administrative decisions that might offend political interests. His uneven legal opinions can also appear to selectively reflect irregular pressure and influence.

The other point of government authority in solving this issue of rogue judges, is the Speaker of the House.  He earlier made threats to shut down some courts, and judicial impeachment is another remedy. Like the Chief Justice, the Speaker appears to under-manage the administrative dimension of his public leadership function.

Professor Vermeule thinks that one solution involves something called “departmentalism” which is a constitutional law theory which implies that a sitting U.S. president could ignore a judicial order, if in his judgment it exceeds lawful judicial power.  But this just kicks the can down the road, and throws the problem of rogue courts back in President Trump’s lap, leaving it unresolved.  Or does it?

Constitutional departmentalism raises a fascinating issue that Vermeule may not appreciate: As conservative constitutional historian and the Raoul Berger Professor at Northwestern University Law, Stephen Presser (also professor of strategy at the Kellogg School of Business) recently told me, “We’ve been conditioned to think that only the courts can tell us what the Constitution means, but that’s never actually been the case, and [residents from the beginning of the republic have repudiated assorted court actions.  Jurisdiction stripping — taking matters out of the hands of the inferior courts is another remedy, but getting Congress to act is not easy.”

In other words, despite the bias of most law professors, reinforced by the concept of “judicial review,” our courts really don’t have a monopoly as constitutional law interpreters. President Trump perhaps holds more cards than may be appreciated.  He has historical “precedent” if he chooses to ignore bad court orders — effectively holding judges in contempt — and it may be argued that he has a right and a duty under his oath, to do so.

This points to one other critical issue with our judicial system: most of its problems aren’t legal, they’re managerial. Legal maneuvering can’t replace responsible management. The Speaker and Chief Justice have a job to do, and that includes recognizing executive office constitutional duty when judges go rogue, or when they can’t find the law in their opinions and orders.

Matthew G. Andersson is the author of the forthcoming book “Legally Blind” concerning law and ideology.  He is a former CEO and has testified before the U.S. Senate.  He is a graduate of the University of Chicago.

 https://www.americanthinker.com/blog/2025/08/who_judges_the_judges.html