📝"juge modeste" ou "check and balance" : alternative aux Etats-Unis, alternative en France ("modest judge" or "check and balance": alternative in the United States, alternative in France)

The British newspaper The Economist uses an algorithmic tool that it had built for its own use a few months ago: based on previous US Supreme Court rulings and the opinions expressed by the justices, it takes the cases submitted to the Court to anticipate what the tool mecanically anticipates will be the solution in this one and that one.

Therefore, the newspaper anticipates the effects of future court rulings on American politics and economics and the rest of the world.

But the article published on 3 October 2025 is more extensive.

Its title is : The new SCOTUS term will reshape America’s constitution.

Its subtitle is : If the justice do not check an overmighty president, the coutry will suffer

The article places the decisions that the Supreme Court will have to make in the context of two opposing 'theories' that are the very basis of the American political system (I). It may be thought that the same thing is happening in continental Europe, particularly in France, in a different way and in different terms (II). Perhaps in reverse (III).

I. CHECK AND BALANCE V/ JUGE MODESTE

The Economist points out that the principle of Check and Balance is not written into the US Constitution. It was born out of the Court's jurisprudence. It was also born out of the fact that it is taught everywhere to students, the general public and children.

This principle, based on what the Court said, which was well read (French philosophers), states that the judiciary is a power that faces up to the other two powers in balance, but above all the executive power, so that the "ambition of the judiciary" can stop the "ambition of the executive".

This is why the article rightly states that the United States has an unwritten Constitution. The same could be said of France if, for example, the Council, or the way in which the Constitution is told, posits, in other words, that the balance of powers is that of a jurisdictional power equal to the others, according to a Check and Balanc called otherwise.

The algorithmic analysis shows that certain future decisions of the US Supreme Court appear to continue to uphold this "unwritten rule" of Check and Balance, while others appear to be purely and simply carrying out the will expressed by the head of the federal state, Donald Trump.

It is then the "theory of the modest judge" that is applied. Often referred to by Justice Scalia, recalling the founding fathers, it states that the judge must respect political power, including the political power of the federated states, and cannot put themselves on the same level as it. In other words, this theory denies the very principle of Check and Balance.

It led the Supreme Court to abandon the Roe v Wade jurisprudence with its decision in Dobbs v Jackson Women's Health Organization of 24 June 2022, a decision which, above and beyond the right to abortion, is above all an abandonment of the Court's power to enact and control federal constitutional rights that are binding on the other branches of government.

So it is the very idea of the Constitution that is at stake. It will be played out over the coming months. Trump has been playing the game for a long time, having appointed judges to attempt this overthrow. We are spectators. It cannot be taken for granted that the Court will become "modest" again, that is to say that it will allow the country to be governed solely by the executive.

II. CIVIL SERVANT JUDGE V/ JUDGE AS MASTER OF THE RULE OF LAW 

France has more written its Constitution, since the text of the Constitution states that the courts constitute an "authority". But this is often not how students and children are told about the French Constitution. The stories often swallow up the texts.

French First President Guy Canivet said, maybe with regrets but descripting the institutional reality that judges were "civil servants", in other words that judges were there to apply the orders of the legislature and the executive to specific cases. These remarks by the member of the Conseil constitutionnel, the French Constitutional Council, and former President of the Court of Cassation, the French Judicial Supreme Court, who is well known as a great judge, were made to provoke, but they did not cause a stir.

The French judge was therefore 'modest'. Article 5 of the Civil Code has not changed, nor has the letter of the Constitution.

Today, it is said that the judge is the expression of the Rule of Law, which is also true. 

This is based on an unwritten principle that can be found in case law, particularly that of the Court of Justice of the European Union, which states that the European Union is founded on the Rule of Law principle and that the Court is its guardian.

We would therefore be in the process of changing the Constitution, moving to an unwritten Constitution in which the jurisdictional authority would be a third Power, having replaced the authority, facing up to the other two powers.

Why not, there are plenty of arguments to justify it.

Il faut simplement acter que nous aurions changé de Constitution in Western Europe.

III. THE OPPOSITE TREND IN THE UNITED STATES AND WESTERN EUROPE

History can go in these two ways.

They are the opposite.

In the United States, the Constitution was built on the principle of Judicial Power placed in an unwritten political system of Check and Balance. By the Court's present will, the political system could be changed to a hierarchical system in which the judge, having become modest, takes their place in a system in which they implement the political will of the Federal Government.

In France and continental Europe, the Constitution had expressly laid down the principle of a judicial system with no political power. By the present will of the European and French courts, a judicial power could be established to defend the Rule of Law against a government, the "ambition" of one limiting the ambition of the other.

Why not.

But we have to say it, and draw all the consequences.