Only one among the Founders’ generation recognized that the Constitution risked making America a corrupt kritarchy—a nation ruled by unelected judges.
For over a hundred years, Americans viewed the civil side of the federal court system as a way to resolve disputes between parties. However, in the early 20th century, Progressives realized that the court system, if it had judges like them on the bench, could serve as an unelected legislature, changing policies and social mores, and as a bulwark against a president whose policies they opposed.
Since that realization, America has slowly transformed from a tripartite government with each branch constrained by checks and balances into a kritarchy—a nation ruled by unelected judges. This reality has become obvious during the two Trump administrations. Now, as if we need it, we have another reminder from Minnesota, where there are signs that leftist federal judges may have formed a cabal to block Trump’s efforts to deport illegal aliens.
The Founders were minimalists in establishing the federal judiciary, for Article III is the shortest of the three articles defining the branches of government. Section 1 establishes a “judicial Power...vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 defines the Court’s power by looking at the litigants and the potential topics, rather than at any potential limitations on the Court’s authority:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3 defines treason, so it does nothing to constrain judges.
That’s it. That’s the whole thing.
But Judge Robert Yates, writing in 1787 in Anti-Federalist No. 78, saw Article III’s fatal flaw: Nothing stops the courts from taking for themselves the power to control the other two branches of government. (You can read Yates’s analysis here.) By 1803, Chief Justice John Marshall, in Marbury v. Madison, arrogated to the Court the power to rewrite the Constitution itself through “interpretation.”
In the early years, the federal courts’ constitutional analysis was bounded by the same narrow analytical tools they used to interpret legislation. Beginning in the second half of the 20th century, though, the courts expanded their power by finding magical rights in the Constitution, everything from abortion to same-sex marriage to forcing people to buy health insurance. The kritarchy was born.
As a litigator in the San Francisco Bay Area for 30 years, I saw the kritarchy at work. The law applied when leftist judges agreed with the outcome the law produced. However, if they wanted to force a different outcome aligned with their ideology, the law became infinitely malleable or even irrelevant.
Since Trump’s first term, we’ve seen leftist federal judges use their now-unlimited Article III power to prevent Trump from governing. In that regard, nothing enrages them more than Trump’s efforts to halt and reverse illegal immigration. It’s in that context that we get this report from Minnesota of federal judges who were ostensibly trying to streamline immigration cases, but who may have been using back-channel maneuvers to slow deportations:
Federal judges in Minnesota tasked with deciding a flood of habeas petitions challenging the detention of immigrants swept up during President Donald Trump’s Operation Metro Surge weren’t working entirely on their own — behind the scenes, they were regularly consulting one another through running email threads and developing tools to quickly handle recurring legal questions.
The behind-the-scenes coordination among Minnesota’s federal bench, revealed in a New York Times report Thursday, included regular meetings, running email threads, an informal spreadsheet created by court clerks showing which judges to turn to with particular legal questions and templates some judges developed to quickly issue orders when similar detention disputes repeatedly came before the court.
[snip]
Seven of the district’s judges spoke to the Times for Thursday’s report, including former Chief Judge Patrick Schiltz, who sat for a 90-minute interview about the court’s experience during Metro Surge. Schiltz declined to discuss ongoing cases, according to the Times, but described what happened in Minnesota’s federal court as having “created a grave threat to the rule of law.”
“It is remarkable that sitting federal judges are giving on-the-record interviews attacking this Administration’s policies rather than ruling from the bench,” a Justice Department spokesperson told Fox News Digital. “If judges followed the law in adjudicating cases, there wouldn’t be an ‘overwhelming’ habeas caseload. Judges who have made public comments on pending or related matters should consider whether recusal is warranted going forward.”
The current Chief Judge, Eric Tostrud, insisted the Court was simply being efficient with a caseload that swelled from 12 alien-detainee habeas petitions in 2024 to 1,427 in 2026. And if the court were just creating templates dealing with administrative matters, he would be right. However, if the judges were engaged in substantive discussions to give them a vehicle for mass detainee release, that’s a problem.
It’s worth noting that in both Venezuela and Brazil, leftists gained power by packing the courts. And remember that the Democrats’ expressly stated first order of business, if they retake power, is to pack the Supreme Court. Once they reliably own the Supreme Court, the American constitutional experiment is over.
If you’re like me, you’re sick of the weak quisling Republicans in Congress. The problem is that they’re our weak quislings; there are no alternative Republicans available. The only other people on the ticket in November will be Democrats. With that binary choice, if we don’t vote for Republicans in November, we will end up with Senators El-Sayed and Talarico deciding America’s future.
Do not let the perfect be the enemy of the good. And if you need an incentive to vote, just think of the difference between Mayor Eric Adams’s New York and Zohran Mamdani’s. That’s what happens when good people stay home on Election Day.
https://www.americanthinker.com/blog/2026/09/have-minnesota-federal-judges-plotted-against-trump-s-illegal-alien-policies/
https://www.americanthinker.com/articles/2026/09/the-mysterious-9-11-apology-by-condoleezza-rice/
https://www.americanthinker.com/articles/2026/09/the-terrorists-real-victory-wasn-t-the-towers-it-was-much-worse/
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