The year was 1937. Supreme Court Justice Owen Roberts had to decide which was more important: his intellectual integrity, or the integrity of the court as an institution. President Franklin Delano Roosevelt’s court-packing plan—which FDR billed as a measure to shore up the country’s “overworked” courts—had precipitated a showdown with the judiciary. No one doubted the plan’s true purpose was to strong-arm the justices into ruling in the president’s favor on his signature New Deal program. If the court as constituted didn’t start approving the president’s agenda voluntarily, he was going to add enough seats filled by handpicked appointees to force it into compliance. The question was whether the justices would yield to the threat.

For Justice Roberts’s more conservative colleagues—ominously dubbed “the Four Horsemen” by political opponents—the answer was a resounding no. Such a blatant assault on judicial independence was too much for them, the long-term viability of the court be damned. They’d sooner see the judicial branch implode than give an inch in the face of what they saw as executive tyranny. On the other side, it was clear that the court’s liberal minority—the so-called “Three Musketeers”—would continue supporting FDR’s New Deal regardless of what happened in the court-packing fight. But Roberts, a moderate former prosecutor appointed by Calvin Coolidge, was in neither camp. So the role of saving the court fell to him and, to a lesser extent, Chief Justice Charles Evans Hughes.

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In the end, Roberts came through. Despite the blow his reputation would take, he began to side with the administration in virtually all the cases that came before the court, often reversing votes he had cast just a few terms before. The message was clear: The court would no longer get in the president’s way. And it worked. Despite the Democratic majority in Congress’s usual impulse to rubber-stamp anything Roosevelt advanced, Congress took heed of the court’s change of heart and killed the court-packing bill. The crisis was over.

But why did it arise in the first place?

***

Things hadn’t always been so strained between the president and the courts. It was something of an open question at the founding whether the judiciary even had the power to assess the constitutionality of the other branches’ acts. Marbury v. Madison answered it, with Chief Justice John Marshall pronouncing definitively that the court was the final arbiter of constitutional meaning in our governmental system.

The result was a relatively stable power equilibrium among the three branches. The elected branches’ role in developing the constitutional landscape had always been clear—Congress evaluated the constitutionality of a bill as a necessary part of the legislative process, and the president exercised the same prerogative through use of the veto power. Marbury simply established that the courts were equal participants in the process; that whenever a law was challenged, they too had to pass judgment on its constitutionality before it could be enforced.

Of course, there were a few ugly battles along the way. Among the worst was in 1832, when the court (again under Chief Justice Marshall) issued a decision ordering the state of Georgia to respect the rights of native tribes. Andrew Jackson, who, like Roosevelt, expanded the role and power of the presidency well beyond that of his predecessors, did not appreciate the court’s decision. He infamously declared: “John Marshall has made his decision. Now let him enforce it.” (The citizens and government of Georgia continued their encroachment despite laws and treaties mandating otherwise. And true to his word, Jackson refused to intervene.)

But Jackson’s defiance was an outlier. In the decades that followed, the judiciary’s prerogative to evaluate and halt the elected braches’ acts under the Constitution was increasingly accepted as a fundamental American norm. Judicial review (as the doctrine was called) became virtually synonymous with the rule of law, and before long it was a solid fixture in our constitutional landscape.

***

Problems began to arise later in the nineteenth century, when the court found occasion to exercise its awesome power with increasing frequency. This tendency culminated in the ignominious Lochner Era, the name given the period in which the court visibly and aggressively invalidated a flurry of state and federal laws on dubious constitutional grounds.

The Lochner decision itself exemplified the era’s folly. In that decision, the court held that a New York law capping bakers’ work hours violated the Fourteenth Amendment. The court reasoned that there was an unwritten “liberty of contract” lurking in the Constitution’s Due Process Clause, and that the state had impermissibly infringed this liberty by prohibiting bakers from agreeing with their employers to work the number of hours they wanted. The court’s analysis was sound as a statement of laissez-faire economics, but its grounding in constitutional law was tenuous at best.

Nevertheless, “liberty of contract” and related substantive due process doctrines, as they became known, formed the basis for many of the anti-New Deal decisions that stoked Roosevelt’s wrath. Each time the court struck down one of FDR’s initiatives, his Democratic majority in Congress would pass a new one, often in a way that at least attempted to address the constitutional concerns the court articulated. But the court would simply strike the new iterations down again. Roosevelt’s popular New Deal program seemed permanently stalled.

Frustrated presidential hopes are an inherent and healthy byproduct of our governmental system, but no president is likely to endure those frustrations for long when they stem from unprincipled exercises of judicial power. As Roosevelt watched the court render increasingly political decisions grounded more in philosophy than constitutional text, he concluded that only similarly extreme countermeasures would suffice in his power struggle with the court. He knew his court-packing plan was radical, but he and his allies saw it as necessary to affirm that America was still a democracy where elections mattered. At a minimum, the plan would remind the justices that the Constitution gave the elected branches near limitless power over the courts, a power they were willing to exercise if need be.

Not that Roosevelt’s response was legitimate. It was a cynical and reckless assault on the separation of powers. But so too was the court’s essentially arrogating to itself the role of national policymaker. Judicial review is only viable so long as Americans and the officials they elect respect the broader constitutional system sufficiently to overcome their inherent distrust of nondemocratic exercises of power. Nothing will erode that respect faster than the perception that the judiciary is merely another political actor. So, while Roosevelt’s court-packing proposal wasn’t justified, one can understand his instinct to fight fire with fire.

***

Roosevelt’s initiative never made it into law, but that was anything but a foregone conclusion, and the lessons from the entire episode remain critically relevant today. The election of Donald Trump has engendered a paroxysm of court activity unparalleled in recent memory. Some of this results from Trump pushing the boundaries on executive power and is surely legitimate. But much of it is of a different character. Political opponents have seized on Trump’s unlikely electoral victory to galvanize their own supporters, using “resistance” to the president as their unifying battle cry. This resistance is of the undifferentiated variety and takes multiple forms, but the principal battleground its architects have chosen to wage this war on Trump is the courts.

That should set off immediate alarm bells. The role of the judiciary in our constitutional order is to resolve individual disputes through impartial application of the law. It is manifestly not to serve as a conduit for political opposition. American law abounds in doctrinal precedents, rules, and norms that exist precisely to prevent the courts from being used as platforms for political advocacy. It’s the courts’ duty when confronted with attempts to thrust them into the political fray to invoke these doctrines and turn away would-be judicial weaponizers.

Frustratingly, courts enlisted into the war on Trump have done the opposite. The president’s opponents have enjoyed a nearly unbroken string of victories in cases that wouldn’t have made it off the ground under almost any other circumstances. These are not cases where individual people have looked to the courts to shield them from improper acts of government. They’re a special species of “impact litigation” that politicians, government entities and political interest groups orchestrate on behalf of their constituents. So we see state attorneys general, university presidents and other public officials joining litigation mainstays like the Southern Poverty Law Center and ACLU in bringing lawsuits on behalf of broadly defined groups to vindicate the social interests they view Trump’s policies as undermining.

The first and most visible of these was the challenge to Trump’s “travel ban.” Leaving questions about the wisdom or equity of Trump’s executive order to one side, it’s a rudimentary separation-of-powers principle that Congress and the president have exclusive authority over immigration policy. Deciding who among the world’s culturally and ideologically diverse population would best fit in our national polity is a complex and politically fraught undertaking. It isn’t one that lends itself to judicial oversight. So, while the First Amendment does (and should) categorically prohibit the government from treating its citizens differently based on what they believe, it does not restrict policymakers from excluding foreigners whose belief systems may be incompatible with our pluralistic society. And it shouldn’t make a difference if those belief systems derive from religion as opposed to some other epistemological source.

Does that mean Congress and the president should ban the members of any particular religious group from immigrating to the United States? Certainly not. But that’s a separate question from whether the Constitution prohibits them from doing so. Whether Trump’s travel order was in fact a noxious “Muslim ban,” then, is beside the point, because allegations of religious animus cannot change the way our Constitution allocates power over immigration.

But judges are human beings who exist in the same zeitgeist as the rest of us, and turning down the opportunity to right a perceived wrong based on abstract principles like “separation of powers” is a very hard thing to do—especially when the media and the rest of the establishment elite who know little about those things are cheering you on in the opposite direction. So far, courts have not proved up to that task. Most to consider the travel ban have found grounds for invalidating it, generally with little more than a nod to the idea that the subject matter might be outside their constitutional purview. It was only when the Supreme Court finally passed on the question that separation of powers was successfully invoked, and even there, four of the court’s justices dissented.

In the same vein are recent decisions invalidating the president’s decision to rescind the Obama administration’s DACA program, which allowed certain people brought to the United States unlawfully as children to avoid removal despite their lack of immigration status. Whether the Obama policy was lawful from the outset was (and is) a close constitutional question. If, as many argued, DACA was an end-run around Congress meant to create new immigration law, it was clearly unlawful. But if, as the Obama administration said in defending the program, it was nothing more than a decision about how to prioritize immigration enforcement with the executive’s limited resources, it could likely pass constitutional muster.

Either way, one thing is clear—after DACA, the next (or even the same) chief executive could decide to realign enforcement priorities in a different way. That’s the thing about presidential policies based on administrative fiat rather than law. They’re necessarily ephemeral. If DACA was lawful, so too necessarily was its rescission. There’s just no way to evade that logical imperative. Yet the challenges rolled in, with several judges agreeing that the president isn’t permitted to enforce the law as it is quite literally written.

The causes proponents are trying to advance with these “resistance” cases are undoubtedly worthwhile. Nowhere is this clearer than with DACA, whose beneficiaries are as much a part of our national fiber as any native-born American. But in a constitutional democracy, political problems require political solutions—even when those problems exact an unfair toll on a sympathetic population. Because once you grant life-tenured judges political power in the effort to solve them, there’s no principled basis for limiting its exercise to particular cases. Like supplicants to Mount Olympus, politicians will turn inexorably to the new priest kings of law to veto any policy the politicians don’t like from on high.

We see this happening already. When Congress recently changed the tax code to eliminate federal exemptions for state and local taxes (which benefitted mostly high-income residents in left-leaning states), Democratic opponents did not limit their opposition to the political arena. They made statements like this:

The idea that the Constitution somehow prohibits Congress from deciding what income to exempt from federal taxation and what income not to is pretty obviously false. The complaint opponents filed in their follow-up lawsuit, abounding as it is with enough aphorisms and atextual platitudes to make a political speechwriter blush, confirms the frivolity of their argument. But there’s a reason why Governor Cuomo’s first instinct was to invoke the Constitution and the courts in opposition to this particular tax policy. It’s same reason why laissez-faire proponents sought judicial invalidation of New York’s law about baker hours in 1913—because the courts had shown themselves only too eager to serve as conscripts in the battle those political actors were waging.

***

Justice Owen Roberts’s humiliating but understandable flip-flop saved the court from immediate annihilation, but the court-packing saga was not without adverse effects on our system of government. In the decades that followed, the court overcorrected for its Lochner Era abuses by slingshotting itself to the other extreme: a jurisprudence of judicial abnegation and hyper-deference. The result was a court that largely receded from the constitutional scene, letting Congress and the president reign supreme. Even when the Constitution placed clear limitations on congressional or executive power, the court showed itself unwilling to step in for fear that too strong an exhibition of authority might evoke the infamy of Lochner and the court-packing threat it engendered.

So while the court’s capitulation to Roosevelt cleared the way for the New Deal initiatives that many liberals at the time cherished, their immediate victory came at a price. The most significant products of the court’s timidity during the period that followed would surely make any true liberal cringe. These include Korematsu v. United States, which upheld Roosevelt’s internment of American citizens during World War II; United States v. Curtis-Wright Export Corp., which upheld Congress’s delegation to the president of near limitless authority to enact the policies of his choosing in the name of national security; and Wickard v. Filburn, which on its face simply upheld a federal regulation of wheat storage but in the process promulgated a theory of congressional power so broad that it opened the gates to the massive federalization and expansion of criminal law that followed and hasn’t stopped since.

These decisions weren’t aberrations. They were perfect representations of what happens when judicial independence is compromised: in a word, tyranny.

Many of today’s liberals seem to have lost that critical insight. Like the Lochner-era conservatives, they believe deeply in the importance of resisting the worst manifestations of a toxic political movement, and they see the courts as their best hope for effecting that resistance. But also like those Lochner-era conservatives, they mistakenly think that the judicial prerogative to negate the acts of democratically elected majorities within our broader system of law is the same thing as actual, sustainable political power.

That mistake is a crucial one. The judiciary’s pronouncements are not talismanic imperatives. The doctrine of judicial review derives not from some wellspring of magical power, but from the carefully crafted legal order of checks and balances our Constitution prescribes. When we upset that order by allowing any of the three branches to overstep, we come that much closer to causing the whole thing to unravel, with disastrous consequences to the very freedom from tyranny the modern left purports to be trying to preserve.

The Roosevelt court-packing scheme was perhaps the closest we’ve ever come to that unravelling. And never since have the stars so aligned to presage a reprisal of that era’s mistakes as in our current political regime. As before, the country has elevated a demagogic populist with strongman tendencies to the presidency. His political opponents again look to the courts to thwart him, and the courts have again obliged, using the great power of judicial review to stymie the president with increasing regularity. The political alignment of the respective sides may have reversed—it is now progressives driving the judicial resistance and a nominally conservative executive they target—but the dangers are exactly the same.

Thankfully, we haven’t yet reached the level of full constitutional crisis. Mostly this is because the Supreme Court has declined to participate in the political war on Trump. But while the Supreme Court is the most important actor in the judiciary, it’s still only one among thousands, and it can only do so much within the constraints of our appellate system.

***

In another time, Democrats would likely have regarded Brett Kavanaugh, Trump’s most recent pick for the Supreme Court, as a fairly uncontroversial (if disappointing) nominee. Kavanaugh is a conservative, to be sure, but no more so than would be just about any other Republican appointee. What makes his nomination different is that it comes at a time when Democrats see the courts as their most powerful allies in the Trump resistance. Kavanaugh represents to Democrats a Trump victory in that political fight, so regardless of his merits or demerits, his appointment would be anathema to them.

Given the willingness some courts have shown to serve in this political role, the Democrats’ intensity in opposing Kavanaugh is understandable (even if some of their tactics are not). When the courts function as the ultimate political weapon, a Supreme Court appointment is indeed something on which to stake your political all. What isn’t acceptable is that the courts have (again) come to occupy that position of political centrality in the first place.

That isn’t sustainable. Now as ever, we need a judiciary with the authority and legitimacy to protect the liberty of the American people. If Donald Trump has shown us anything, it’s that we wouldn’t be able to count on him to serve as the voice of reason or restraint in a constitutional showdown. So, as in 1937, that task must fall on the courts. If and when President Trump’s worst proclivities are realized, and his administration transgresses its proper boundaries, the judiciary should not hesitate to exercise its full authority in putting a stop to it. But it will only have that authority if courts don’t erode it out of existence by further indulging Trump’s opponents in a war that is manifestly political, rather than legal, in character.

Many of those celebrating the courts’ high-profile presidential smackdowns lack sufficient familiarity with America’s constitutional tradition and history to recognize the threat such judicial overreaching poses. But many do not suffer from that lack. In the end, these liberals and progressives have to ask themselves what it is they truly hope to accomplish as a political movement. Because if it’s a liberal world order they seek, history leaves no doubt that the means they’ve chosen to achieve it will backfire.

Even more important is that our judges step up and do the job they’re appointed to do. They have to remain cognizant of the bigger picture. They have to reckon with reality that they too are fallible human beings who are susceptible to ordinary social and political pressures, and who will feel the impulse to wield their power so as to invite popular opprobrium. For the good of our country and the people in it, they must subordinate that impulse to the greater good of preserving our magnificent constitutional order at a time when its foundations are most at risk of assault. Only by thus maintaining the rule of law can we truly remain free from tyranny in the long run.

If this moment in time feels strangely familiar, it’s because it is. Listen to Christine Blasey Ford. A woman’s experience should never be valued less than a man’s career.

Full statement below: pic.twitter.com/eRoiHz5PNF

— TIME’S UP (@TIMESUPNOW) September 17, 2018

Thank you Deborah Ramirez for bravely speaking out. These next few weeks are going to be a wildfire. We are your water. We stand with you and every survivor like you. #DeborahRamirez #BelieveSurvivors

— Amber Tamblyn (@ambertamblyn) September 24, 2018

The Senate Judiciary Committee must suspend their confirmation process. Anyone who objects to a delay is discounting the safety and dignity of women in favor of a political agenda. We demand and deserve better.

— TIME’S UP (@TIMESUPNOW) September 24, 2018

LAS VEGAS — It became a hymn of the 2016 campaign: “When they go low, we go high.” Michelle Obama’s aspirational rhetoric struck a chord with Democrats at a time when few believed Donald Trump could win.

But two years later — and with the coarse reality of Trump’s presidency wearing on— “We go high” has lost its resonance for many Democrats out of power in Washington and filled with rage. In the run-up to 2020, the party is sharpening its edges for a brawl.

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Joe Biden, the former vice president, said of Trump’s treatment of women this year, “If we were in high school, I’d take him behind the gym and beat the hell out of him.” Michael Avenatti, the lawyer who is also considering a run, told a crowd in Iowa, “When they go low, I say we hit harder.”

Or as Sean Clegg, a longtime Democratic strategist in California, put it: “When they go low, we kick ‘em in the nuts.”

Few public figures are as beloved by Democrats as the former first lady, who stepped into the midterm elections with a rally here Sunday. Several thousand rally-goers erupted in cheers when someone shouted to her, “Run for president!”

But her address — a non-combative call to register to vote — appeared to pale against the vitriolic tone of the current political climate. Three days earlier, Trump had catapulted into Las Vegas, calling Nevada Rep. Jacky Rosen ‘Wacky Jacky” and accusing Democrats of being “held hostage by left-wing haters” and “angry mobs.” In contrast, Obama said Sunday she was “not here to campaign for any candidate” or “tell anyone how to vote.”

Inside a packed gymnasium at a high school across town from the site of Trump’s rally, Obama said, “I’m here today to talk about why voting matters.”

Clegg called Michelle Obama “almost a perfect public figure,” and recalled in “We go high” a “gorgeous speech that really spoke to me in the moment.” But he added that “I think [Michelle] Obama would be the very first person to acknowledge … that what we faced in 2007 and 2008 was a wildly different world, and a wildly different media environment.” 

Now, he said, “When they go low, we go high: To me, that’s not the formula to beat Trump … Ultimately, what I think Democrats are going to want in a nominee is, ‘Is this person tough enough to stand up to him?’”

In a bid to appeal to primary voters, nearly every top-tier Democrat considering running in 2020 has swiped aggressively at Trump. In June, Sen. Elizabeth Warren (D-Mass.), accused the president of standing for “hatefulness, ugliness and cruelty.” When Ellen DeGeneres asked Sen. Kamala Harris (D-Calif) on her television show in April, “If you had to be stuck in an elevator with either President Trump, Mike Pence or Jeff Sessions, who would it be?”” Harris responded, “Does one of us have to come out alive?”

But even Democrats who have confronted the president continue to struggle with how aggressively to tangle with him, fearful of diminishing an agenda of their own. Asked repeatedly to comment on Trump at a march in Pittsburgh this month, Biden said only, “Everybody knows who the president is.”

Washington Gov. Jay Inslee, a potential 2020 candidate and chairman of the Democratic Governors Association, said in an interview that Democratic primary voters are likely to give extra consideration to a candidate’s experience, with Trump’s unpopularity demonstrating “the importance of having that ability to forge consensus and to be a listener to multiple interest groups.”

However, Inslee then alluded to his confrontation with Trump at the White House over gun control this year, saying 2020 Democrats must also have “demonstrated a spine for resistance, like a guy who’s gone to the White House and told Trump to his face that he’s wrong.”

Obama did not confront Trump on Sunday. Nor did she mention the controversy surrounding Supreme Court nominee Brett Kavanaugh, despite appearing shortly after The New Yorker reported a second accusation of sexual assault against him.

Instead, Obama focused on the impact of voting to shape issues ranging from road maintenance and public safety to mental health and clean water.

“Not voting is like letting your grandma pick your clothes out ,” Obama said. “You are essentially putting your future in the hands of others.”

Obama drew raucous applause. And before her arrival, a small crowd-within-a-crowd repeated her refrain, “When they go low, we go high.” But in their 2020 candidates, Democrats are increasingly searching for a more combative tone.

“Different times call for different measures. You can’t have a single approach or a single speed,” Avenatti said in an interview. “These are desperate times for the future of the republic.”

 

Avenatti contends Democrats widely misinterpreted Michelle Obama’s remarks, calling her speech “admirable” but saying he saw them as aimed at a specific kind of verbal assault: one involving her family.

“You have to look at the context of when that statement was made by the former first lady, who I respect immensely,” Avenatti said. “There were personal attacks on her familiar and her kids, that’s what was happening when she said that. I do not believe that she was speaking to a general political approach.”

Avenatti is not alone in that assessment, with candidates up and down the ticket adopting a more aggressive posture in the midterm elections and in their preparations for 2020.

“One of the things that the Republicans do really well is that they stake their claim and are very clear about what they believe, and if you don’t like it, tough, don’t vote for me,” said Kelly Dietrich, founder of the National Democratic Training Committee, which trains candidates across the country. “Democrats need to be better at using emotion to motivate people … We’ve got to get tougher. That doesn’t mean we get dirty. It just means we get tougher.”

Bill Burton, a Democratic strategist and veteran of the Obama White House, said Michelle Obama’s “We go high” advice is “essentially still true” for Democrats, who he said should frame the 2020 campaign “on facts and issues that people are really caring about in their lives.”

But Burton said Democrats in 2016 failed to focus the electorate on a cohesive message and that with Trump in office in 2020, Democrats will “need someone who can effectively prosecute the case against Trump.”

“Whether that’s someone who’s talented at prosecutions, like [former Attorney General] Eric Holder or Kamala Harris, or someone who’s just good at getting press to pay attention to what he says, you know, remains to be seen,” Burton said. “My guess is we’re going to need someone who’s effective at litigating the case against President Trump so we have a better outcome than we had in 2016.”

Michelle Obama’s voter registration initiative is officially nonpartisan, though increasing registration in urban areas such as Las Vegas is likely to disproportionately benefit Democrats. Promoting voter registration has allowed Obama to float largely above the partisan fray. She is also promoting a new book, with sold-out dates in New York and Washington.

And even if Obama does not unload on Trump, Democrats view her appearances as significant, especially in such competitive states as Nevada, home to a critical Senate contest between Rosen and Republican Sen. Dean Heller.

“Look, we’re a minority party and it’s really hard for us to get a message out in general when you’re in the minority,” said Ben Tulchin, a Democratic pollster who worked on Sen. Bernie Sanders’ 2016 presidential campaign. “It’s even harder when you have Trump in the White House, who dominates the media coverage every day.”

When former President Barack Obama visited Orange County recently, Tulchin said, “it was four days of positive news stories for Democrats.”

“Just having a positive counter-narrative for voters is helpful with our base: it motivates our base even more, it fires up our base,” Tulchin said. “Having that contrast is helpful whether it’s Barack or Michelle, in this case.”

As for Michelle Obama’s “We go high” admonition at the Democratic National Convention in 2016, he said, “That’s her brand, and it’s inspirational. Is it realistic in today’s Trump world we live in? You know, probably not. But she can’t just … crumple that up and throw it away.”