Campaign season is no different. Though no judges, including those on the Supreme Court, are (or can be) up for election, how they vote affects how the people vote. Polling suggests the issue of Supreme Court nominees had a significant, possibly decisive, impact in electing Trump in 2016. This election has been dominated by the aftermath of the Supreme Court’s decision overturning Roe v. Wade, as well as its rulings regarding presidential power and immunity from prosecution. 

The judiciary’s role in our political system is worth bearing in mind as we commemorate the anniversary of the Judiciary Act of 1789, signed into law by President George Washington 135 years ago today. It stands as one of the most consequential pieces of legislation in American history. 

In Article III, the Constitution established certain fundamental elements of the American judiciary. It mandated the existence of a Supreme Court with a chief justice. It prescribed how to choose federal judges, with the president nominating and appointing and the Senate advising and consenting. The Constitution, moreover, gives certain areas of law wherein the national courts, including the Supreme Court, decide cases. 

But much about the judiciary was left up to legislation by Congress. The Judiciary Act filled that role. It set the number of Supreme Court justices (six at that time). It established lower courts, including having Supreme Court justices spend half of their time “riding circuit” as appellate court judges in addition to their high court duties. 

Certain elements of the national court system have changed. Justices no longer ride the circuit and have much more control over what cases they hear each year. The Supreme Court itself declared void one part of the Judiciary Act in the famous case of Marbury v. Madison (1803) that asserted the power of judicial review. 

Yet the Judiciary Act has held up very well with most of its spirit and much of its letter still guiding our judicial system. In particular, we would do well to consider the oath for judges prescribed in the original text, for it describes the role of a judge well. 

The oath first makes the incoming judge declare he or she “will administer justice without respect to persons, and do equal right to the poor and to the rich.” The judge promises not to decide cases based on the litigants. This bias could result in giving favor to friends and disadvantaging enemies or to the powerful over the weak, whether that be wealth as mentioned or social status. This point affirms the rule of law and the judge’s submission to that rule. 

The oath later includes swearing or affirming that the judge will act faithfully and impartially according to a set of standards, meaning “agreeably to the constitution, and laws of the United States.” This point does more than affirm a generic rule of law. It commits the judge to our laws with the Constitution as the highest of them. It demands a thorough knowledge and a fervent love for these laws on the judge’s part. 

Finally, the swearing judge may add the phrase “So help me God.” Here we see another instance of the early statesmen of our republic placing in law an invocation of divine guidance. As God is the ultimate author of ourselves, our country, and of justice itself, calling on Him to help the mind and heart is a worthwhile, even a necessary, endeavor. 

As the judiciary continues to come up this election season, we should be thankful for its successful construction not only in the Constitution but in the Judiciary Act of 1789. We retain a debt to those Founding men that we never can adequately repay. 

Moreover, we should think on the judicial oath when assessing the judicial philosophies that a nominee by Trump or Vice President Kamala Harris would bring to the bench. Who will be most impartial, most dedicated to the rule of law? Who will act more faithfully to the Constitution and the nation’s laws?

The founders set us up to ask those questions. Let’s follow their lead.

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Adam Carrington is an associate professor at Ashland University.