By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — An Arizona Supreme Court justice is publicly warning of the danger to democracy if the president gets to claim that only he gets to decide what is the law.

“The most dangerous notion floated by the revisionists is that the president should get to decide his own constitutional authority — which would mean he has no limits,” wrote Clint Bolick in a commentary published in Real Clear Politics.

“Subordinating the judiciary to the executive branch is a favorite device used by authoritarian regimes on both left and right,” he said. “If that happens here, the framers’ design of a government of limited and defined powers will cease to exist.”

Bolick does not call out the current president by name in his commentary.

But he told Capitol Media Services that it was the election of Trump — and the policies his administration has pursued with its unilateral actions taken without consent of Congress — that got his attention.

“I started hearing disturbing comments that are the focus of the article pretty much right away,” he said of the new administration.

“I felt that a judge should weigh in,” Bolick continued. “And I wanted to be a part of the conversation from the earliest possible moment.”

Bolick’s comments are significant as he clearly does not fall into the category of either Democrat or liberal, groups that have been openly hostile to the presidential actions.

He had been registered as a Republican until 2003 before becoming politically independent. And he was appointed to the bench in 2016 by Republican Gov. Doug Ducey.

Prior to that, he was with the conservative Goldwater Institute.

What’s behind his commentary, Bolick said, are how current events are affecting the independent judiciary “with the power and duty to protect individual rights and to hold the political branches to the constitutional boundaries.”

“It is under grave attack from people in powerful positions and their legal sycophants who are giving currency to notions intended to delegitimize and neutralize the courts’ vital role in our constitutional system,” he wrote.

Bolick said this isn’t entirely the fault of one side of the political spectrum, saying there have been attacks from across the board from those who believe that the courts are “obstructing” their political agendas.

“Of course, politicians and their supporters are free to slam courts and their decisions,” he said. In fact, Bolick said, it is the role of courts to protect their freedom to do that.

But what has been occurring lately has raised concerns.

“Highly dangerous tactics and arguments are being urged to counter court rulings with which the government and its powerful allies disagree,” he said.

That specifically includes contending court orders should be defied, saying judges should be impeached, and “arguing that the president, when he takes unilateral action through executive orders or emergency decrees rather than legislative enactment, has the power to define his own constitutional authority.”

That last point came into sharp focus last month when Trump posted on his Truth Social network that “he who saves his Country does not violate any law.” The White House never responded to requests for the president to clarify his comments.

At the same time, Elon Musk, who has become the president’s top adviser, has criticized judges on his X platform calling them “evil” and corrupt. And not just that.

“The only way to restore rule of the people in America is to impeach judges,” he wrote.

Bolick said that kind of talk makes no sense.

He pointed out only 15 federal judges have ever been impeached in the history of the country and only eight removed. Bolick said that’s for good reason as they must be found guilty of treason, bribery, or other high crimes and misdemeanors.

“‘Disagreeing with a judge’s opinions’ or ‘thwarting a president’s agenda’ are not among impeachable offenses,” he said.

While Bolick did not lay blame for who is behind this newfound desire to ignore court orders or impeach judges, he pointed out it appears to be a more recent development that more or less coincided with the change in administration.

“Until November 2024, most conservatives supported a robust and independent judiciary,” he wrote.

Consider, he said, the decision by Barack Obama to create and expand on his Deferred Action for Childhood Arrivals program. He said conservatives went to court and got rulings in their favor, most recently in a case out of Texas where an appellate court questioned the legal basis for the program.

Ditto, he said, of successful challenges to moves by the Biden administration to cancel student debt.

Bolick said conservatives also were behind moves contesting the emergency orders issued by the president and governors during the COVID epidemic.

“Our principles should not shift based on who occupies the White House,” he said.

Bolick had a warning for conservatives if they are successful in undermining the legitimacy of the judiciary and the role of judges as the ultimate arbiters of what is and is not constitutional.

“Going forward, the rules we set today will be the rules that apply tomorrow,” he said. “A future liberal president, unbound by judicially enforced constitutional limits, might decide to constrain rights that conservative cherish, such as property, guns and religion.”