Who are a Federal judge’s—at any level of the judicial hierarchy—constituents? I asked this question of a number of folks, and the most cogent answer I got was this: “in order, the law and justice.” Even that answer, though, is only about one-third right IMNSHO.
Here is the first oath of office Federal judge and Justice must take; it’s the same as any Congressman must take.
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Here is the additional oath of office that a Federal judge or Justice must take. Notice that his prior oath does not expire (no oath can); this oath adds to it.
I, [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [judicial position] under the Constitution and laws of the United States. So help me God.
Here is what Article I, Section 1 of our Constitution says about legislative authority.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Thus, a Federal judge’s constituency begins and ends with the Constitution. Full stop. His constituency does not extend to “the law,” only to the supreme Law of the Land. All other law, which can be enacted only by the people’s elected representatives in the legislative and executive branches under our system of governance, must be subordinate to and compatible with the Constitution. A judge’s duty here is to reject a law that is not compatible, that is unconstitutional. Or on its constitutionality, to apply it as it’s written. His oaths of office demand he defend the Constitution, and that defense enjoins him to not write law, not modify law, only to apply it. To this end, a judge’s interpretation of a law is only for the purpose of applying it as written, not to “interpret” it to his convenient end.
Not “justice,” either. What is justice, what is just, are social and political determinations, and those determinations, too, can be made only by We the People, directly or through those elected representatives of ours. A judge can only apply the law before him as it is written (or strike it); he cannot judge a case according to his own sense of justice or social mores. He certainly can rail against the injustice (from his sense of it) of a ruling to which the law before him drives him—and he should—but he can rule in no other way but what the law itself requires.
This makes especially reprehensible the 4th Circuit’s ruling on President Donald Trump’s immigration Executive Order.
It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No 78.
