Thomas Jefferson once said, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” He went on to warn that granting the judiciary alone “the power of declaring what the law is” makes it into “a despotic branch” of government, makes judges into “despots” and makes the Constitution into “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” According to Jefferson, this notion of judicial despotism must be rejected, lest the judiciary “slyly and without alarm” accomplish “what open force would not dare attempt”, namely, the undermining of our Constitution and the overthrow of our government.

Unfortunately, Jefferson's words have been long forgotten and we've be living for a long time under the iron gavels of a judicial oligarchy—judges who neutralize our legislatures, negate our laws, and nullify our voices and votes. However, the state of Montana may have just provided us with a model to follow to free ourselves once and for all from the shackles of our tyrannical tribunals. To understand how Big Sky Country may have just given us a big solution to our big problem of judicial despotism, we need to understand that our judiciary is precariously suspended by two thin threads.   

First, there is the thin thread of its total reliance upon the executive branch of our government to enforce its rulings. For example, when the Supreme Court ruled that Georgia could apply state laws to Cherokee lands, President Andrew Jackson defied the Court by declaring, "The Supreme Court has made its decision, now let them enforce it." Jackson knew, as few Americans do today, that the judiciary has no enforcement powers, such powers belong to the executive branch alone. 

Second, there is the thin thread of public confidence, which the late Antonin Scalia once warned was becoming frayed by our courts ever-increasing hostility toward religion. According to Scalia, since the Court has "no influence over either the sword [executive branch] or the purse [legislative branch],” it better not "go too far” in contradicting “both historical fact and current practice," unless it lose "all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive.” 

Now. in light of the thin threads our judiciary hangs by—the executive branch's willingness to enforce its rulings and the public's willingness to accept them as definitive interpretations of the Constitution—the state of Montana is defying the ruling of a district court judge, Michael Moses. In defiance of state law, passed by the state legislature, to block a Department of Public Health and Human Services rule that allows the transgendered to change the gender on their birth certificates, Moses singlehandedly overturned the law, as well as Montana's state legislature and the will of Montanans. However, the Republican-run state has decided to defy this judicial despot and continue to follow its duly passed law in defiance of Moses' despotic ruling.

Perhaps, other states will follow Montana's example of defiance of a despotic judge who takes it upon himself to lord it over a state legislature and the voices and votes of state residents. One thing for sure, if other states don't follow suit, despotic judges will continue to claim that the law is whatever they say it is, not what the people's duly elected representatives say it is, and we'll continue to find ourselves under a tyrannical judicial oligarchy, which has turned its benches into thrones, its black robes into regal ones, and its gavels into scepters!