Civitas No. 12
On Courts, Courage, and the Limits of Judicial Repair
To The People of the United States:
In every age of political frustration, there arises a familiar hope: that the courts will save us. When legislatures evade responsibility, when executives overreach, and when citizens grow weary of persuasion, attention turns to the judiciary as a final refuge. This hope is understandable. It is also misplaced.
Courts are not engines of reform. They are reactive institutions, designed to resolve disputes brought before them, not to repair a decaying civic culture. They do not initiate action; they respond to it. They do not govern; they judge. When courts are asked to perform work that properly belongs to citizens and their representatives, the result is not renewal, but distortion.
Judicial courage lies not in innovation, but in restraint. The most difficult act for a court is not to announce a sweeping principle, but to decline to do so -- to say, in effect, that the matter before it exceeds the judicial role. Such restraint is often criticized as timidity. In truth, it is fidelity. A court that resists the temptation to govern preserves both its legitimacy and the separation of powers upon which that legitimacy depends.
Some constitutional failures cannot be cured by litigation. No ruling can restore habits of citizenship, compel sustained civic engagement, or generate the consensus required for durable change. Courts may strike down an unlawful act, but they cannot supply the will to govern. When litigation is treated as a substitute for persuasion, organization, and amendment, it becomes a strategy of avoidance rather than repair.
This reliance on courts reflects a deeper civic exhaustion. Citizens grow accustomed to outsourcing responsibility upward -- to representatives, to agencies, and finally to judges. When outcomes disappoint, they file suit. When decisions are adverse, they wait for the next case. In the meantime, the harder work of self-government is postponed, sometimes indefinitely.
Expecting courts to solve political decay erodes the separation of powers in two directions at once. It pressures judges to assume functions they were never meant to perform, and it excuses citizens and legislators from performing those they were. Over time, courts become politicized not because judges are ambitious, but because the public demands political outcomes through judicial means.
This dynamic weakens everyone involved. Legislatures defer difficult questions to the courts rather than resolve them openly. Citizens invest their hopes in rulings rather than in consensus. Courts, caught between expectation and restraint, are blamed whether they act or decline to act. The result is disappointment disguised as dependence.
Litigation has its place. It enforces limits, vindicates rights, and resolves genuine controversies. But it cannot substitute for civic courage. A people who wait for judges to rescue them from political failure have already conceded the central premise of self-government -- that they are responsible for the laws under which they live.
The Constitution does not promise salvation through courts. It presumes a people willing to govern themselves through debate, compromise, and, when necessary, amendment. Courts can defend that process; they cannot replace it. When they are asked to do so, legitimacy drains away from all sides.
This paper is not an indictment of the judiciary. It is a reminder of its proper dignity -- and of its limits. A restrained court is not a weak court. A citizenry that refuses to act without judicial permission is not prudent; it is dependent.
The repair of constitutional self-government cannot be litigated into existence. It must be undertaken by The People themselves, through the means the Constitution provides and the effort it demands. Courts may clear obstacles from the path. They cannot walk it for us.
Civitas Americana