Lexington Park, Maryland –

Of course, the Deep State has already started feebly striking back – with their screeching horde defense and a flurry of lawsuits. The shrieking hordes have mostly been senators, congressmen, and news personalities. Oddly, the rank and file orcs just don’t seem to have their hearts in it. When they had that national day of protest in each state capitol on Friday, Feb. 5, I saw a drone picture of all the protestors in Madison, the capitol of Wisconsin. A local radio station said thousands came out. The local daily newspaper said 400 were there. But you could literally count them individually from that drone photo – and there were not even a hundred, including dogs and passersby. That old, grey nag of ‘The Resistance’ ain’t what she used to be.

Thus far, Donald Trump has used each phase of activity to smoke out the next group of hacktivists and then deal them a well-deserved shellacking. Now he is smoking out the hacktivist judges (Antifa with robes and gavels). Late last week, District Judge Paul A. Engelmayer granted a temporary preliminary injunction preventing DOGE members from reading Treasury Dept. files. When Treasury Sec. Scott Bessent clarified that the people looking at the files are Treasury Dept. employees that are part of its internal DOGE team, the judge ruled that even the treasury secretary, himself, is not allowed to look at the files. That is absolute insanity that directly contradicts Constitutional law, statutory law, and common sense. In essence, it rules that only approved Deep State members are allowed to look at government files – and precludes the elected president, his appointed department head, and any conservative employees from having control over the materials they are charged with maintaining. This ruling says, nakedly, that the voters and those they elect are to have no say over policy – only those who the Deep State approves. (Engelmayer, by the way, is an Obama appointee. Presumably, he has a phone and a pen.)

Hacktivist judges have been the most serious problem facing any sort of accountable governance. Lefties can always find a congenial hack in robes who is not the least bit interested in what the law says, but only what the left’s preferred position is. Among his many tactics, Trump is clearly intentionally smoking out the worst offenders among judicial hacktivists. I sense that Trump has a strategy in place to deal with this but I am not sure exactly how he will proceed. (One of the things I enjoy about Trump is that he often uses techniques similar to my own – but that I have never seen any other political official use effectively…and on some occasions he does things that I had not thought of. Keeps it both interesting and enlightening.) There are a few observations to be made in consideration of what his strategy is to surmount this hurdle, though.

Thomas Jefferson thought the lifetime tenure of federal judges was the biggest danger to the novel Constitutional order he and his colleagues had created. They had strived for a balance between the three branches of government – and Jefferson feared the lack of any effective accountability for judges once they were confirmed could lead to them eventually taking on the role of philosopher kings, acting as final arbiters of all disputes in America, thus degenerating into a wholly unelected and unaccountable oligarchy.

The other founders thought that lifetime tenure would free judges from political considerations. While acknowledging the danger Jefferson was concerned with, they considered it remote because the Constitution had proscribed judges from acting, at all, on many matters – such as religion (the 1^st Amendment did NOT rule separation of Church and state – it was intended to bar federal jurisdiction over matters of religion entirely, which would be left up to the individual states. It was the 14^th Amendment that allowed the judiciary to get involved in such matters – and activist judges did not perceive and pounce on that until nearly a hundred years after the 14^th was adopted.), war powers, and the routine internal administrative practices of the separate branches, among other things.

While Jefferson acknowledged the value of freeing judges from political considerations, he thought lifetime tenure was too radical a device unless a more effective means of calling rogue judges to account was integrated into the Constitution. As it stood, the Constitution prescribed that, once confirmed, judges were to serve for life “during good Behavior.” That meant they could be impeached and, if convicted by two-thirds of the Senate, removed from office. Otherwise, they were untouchable, except for actual serious, criminal behavior. Jefferson thought that far too high a hurdle for removal. Unfortunately, Jefferson was stationed in France while the debates on the Constitution were ongoing – at a time when communication could take weeks or months between the two continents, so these concerns never got fully addressed.

At the start of the Constitutional order, America did NOT accept the idea of judicial supremacy. The judiciary was the final word on most Constitutional questions, but not all – certainly not on the internal operations of the exercise of the legitimate powers of the other two branches. To make a ruling such as Engelmayer did was as unthinkable as Congress asserting its “right” to exercise veto power over who judges could hire as law clerks…or the president asserting a “right” to determine when and where courts could make rulings. Such assertions were absurd on their faces and would be easily slapped down. But if the courts ordered such an absurd encroachment on the other branches, there was no straightforward mechanism for slapping it down.

Several presidents, including Andrew Jackson and Abraham Lincoln, simply ignored certain court rulings, with Jackson memorably proclaiming after a dispute with Chief Justice John Marshall that, “Marshall has made his ruling: now let him enforce it.” More recently, Barack Obama and Joe Biden have both ignored court rulings (Obama on offshore drilling, Biden on several things, most notably student loan forgiveness). But they did so in a cultural climate where it was (D)ifferent when they do it.

Since the media, largely the stenographers of the far left for at least a quarter century, has been defanged, Trump could reasonably defy any such orders on routine internal operations of the executive branch with some impunity. But such an act risks reviving some of the false credibility of the establishment press, which would howl in unison if Trump did what both Obama and Biden were hailed as heroes by the same press for doing.

Yet rogue justices who make their decisions purely based on outcomes rather than law must be reined in. If the founders gave lifetime tenure in the expectation that honorable judges would not succumb to political pressure to make unlawful decisions, they did not account for ideologues taking advantage of the lack of political pressure to intentionally make unlawful decisions that advance their preferred ideological outcomes. I think that will receive some clarity this term.

My preferred option is to get the Supreme Court (SC) to take emergency, expedited action when a judge makes a ruling that is plainly unconstitutional or unlawful on its face, upon application of the President, Speaker of the House, or Majority Leader of the Senate. The SC could refuse to take up frivolous claims, but must rule in a matter of weeks on those it did take up. But that is a stopgap measure. It still maintains omnipresent judicial supremacy and would be utterly ineffective if the majority of the justices were, themselves, primarily ideological supremacists. Two of the nine justices, Sonia Sotomayor and Ketanji Brown-Jackson, already clearly qualify as activists wearing robes, eager to ignore or contradict the law if they can advance leftist goals.

You could also have judges in other circuits make contrary rulings whenever a hacktivist judge makes a blatantly unlawful ruling. When two circuits contradict each other on the same issue, it must go to the Supreme Court for resolution. Again, that still maintains judicial supremacy on all things…and would require some judges to become reactionary as a palliative against other, rogue, judges. It could be an effective approach in the short term, but would be like driving on the donut spare tire in the long-term – klunky and dangerous.

Or you could have both the executive and legislative branches ignore obviously improper encroachments onto their internal affairs, It would foment a Constitutional crisis, but would prod the SC to develop a palliative to preserve its own prestige and independence.

In the end, it will take a Constitutional Amendment to correct what Jefferson originally thought – and several other founders later came to think – was a serious, unaddressed flaw in our Constitution. But that takes a long time. We need both short-term approaches and a long-term approach. There is another short-term approach I have not mentioned and will not, for now. It is a nuclear approach, an approach that I think the leftist activists on the bench richly deserve, but fear could be too destabilizing. I will leave that for now. I am sure Trump has a plan and will look forward to how that plan unfolds.

What is certain is that there will be continuing resistance to transparent, Constitutional governance. Democrats in both politics and the media are cornered and are dying. That is the cause of all the shrieking and wailing. But never forget that a cornered animal is a feral, dangerous thing. Also remember that movements usually come to an end not because they lack vigor, but because of overreaching abuses. Let us be deliberate and bold – but never brash or merely vengeful.

Even a dying empire of dysfunction strikes back to preserve itself. It has been a hoot, though, to watch leftists (who usually pretend to be ‘champions of the people’) nakedly come out to defend, at the top of their lungs, waste, fraud, and cronyism.

If communication goes out for any length of time, meet outside your local Church at 9 a.m. on Saturday mornings. Tell friends at Church now in case you can’t then. CORAC teams will be out looking for people to gather in and work with.

Find me on X at @JohnstonPilgrim

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