The Imperial Judiciary
The QandO Blog
Posted by: Dale Franks on Wednesday, March 30, 2005
Bert Brandenburg writes in Slate that there is a movement afoot to limit the power of the Judiciary. But, he says it like it's a bad thing.
He notes that the Schiavo case may be seen as a watershed for the movement to restrain the judiciary.
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In fact, the Schiavo episode spells trouble ahead for the courts that protect our rights. The judiciary is fast becoming enemy No. 1 in the culture wars—and the side wearing the black robes is losing. The anguish over Mrs. Schiavo's nightmare is boosting a rising common culture of attacks on the independence and legitimacy of our courts. In Washington and far beyond the Beltway, this new war on the courts is being waged through legislation and political intimidation, fueled by special interest campaigns of rage...
Measures like these flow from a view of our courts as little more than enemy combatants. After the Supreme Court ruled that certain antiterrorism tactics violated the Bill of Rights, Attorney General Ashcroft accused it of endangering national security. During the Schiavo case, House Majority Leader Tom DeLay warned that "no little judge sitting in a state district court in Florida is going to usurp the authority of Congress." And the latest best-selling screed against the judiciary—Men in Black: How the Supreme Court Is Destroying America—repeatedly accuses the courts of "tyranny" that make it "difficult to maintain a republic." Congressional leaders brag that they will "take no prisoners" in dealing with the courts and that "judges need to be intimidated."
This intimidation campaign is now well under way. A Reagan-appointed judge was recently hauled before a congressional committee to explain comments that weren't properly supportive of sentencing guidelines. There's a new effort to make impeachment into a respectable punishment for federal judges who make controversial decisions, exceed their jurisdiction, or consult foreign law in their deliberations. State judges have also seen a spike in impeachment threats: 39 from 2002 to 2004, almost double the previous three years.
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It's the VRWC again, this time trying to strip judges of their power, and make them lackeys to their political masters.
Such hyperventilation aside, though, it's not illegitimate to ask whether there does need to be a rebalancing of power between the courts, the legislature, and the executive. And the courts themselves are providing ammo for their critics:
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- A Federal Judge in Missouri ordered Kansas City to raise property taxes in order to pay for his court-ordered remedies. Several state courts are now embroiled in similar controversies over court-ordered tax increases.
- By invoking a non-existent "right" to privacy, the courts have increasingly legislated social outcomes from the bench, including finding a right to abortion in the 14th Amendment, and most recently, a right to homosexual marriage in some jurisdictions such as Hawaii and Massachussets.
- Federal Courts have repeatedly struck down voter referenda, such as Prop 209 in California, that ended affirmative action through race-based classifications, or Prop 187, which would have denied taxpayer benefits to illegal immigrants. Federal courts in Washington overturned a state referendum to ban assisted suicide.
- Federal Courts have ruled that states may not compose their state senate of representatives from geographical districts, but must proportionally represent the state’s population. Essentially this says that it is unconstitutional for states to fashion their legislatures in the same manner that the Constitution requires the national legislature to be composed. This defies credulity.
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These four examples represent the most troubling trends in the court:
1) Usurpation of legislative powers,
2) the creation of new rights not found in the Constitution,
3) abrogating the democratically expressed will of the people, and
4) outright irrationality.
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At the heart of this debate is something that Pepperdine Law Professor Douglas Kmiec suggested when responding to the court's decision in Roper v. Simmons, several days ago:
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The court's decision fans the flames of a long-standing dispute over how the Constitution is to be viewed. Should it be treated as an enacted law—that is, something to be fairly interpreted and evenhandedly applied—or is it an open-ended document for the court to interpret as it sees fit? The first methodology is democratic self-government; the second—in which an elite body is invited to impose binding pronouncements about how the rest of us are to live—is something else.
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Nor is this a new concern. It has been present since the founding. "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions," said Thoman jeJefferson. "It is one which would place us under the despotism of an oligarchy."
James Madison, writing in The Federalist, wrote that the combination of legislative and judicial power in one body was "the very definition of tyranny."
Abraham Lincoln, referring obliquely to the Dredd Scott decision in his First Inaugural Address, said, "[T]he candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal."
Defenders of the court often respond that an independent judiciary is critical the the operation of our government—which is true—but, it seems problematic to me to argue that usurping the legislative power by ordering tax increases is a legitimate power of an independent judiciary. Is it even possible to argue seriously that the founders, who fought for a decade to gain independence from England under the slogan, “Taxation without representation is tyranny”, ever seriously intended for an unelected judge to levy taxes?
If there is any clear principle that can be divined from our founding documents, it is this: that the sole repository of legitimacy in government is in will of the people. This is the reason that the Congress is the supreme branch of government. It is Congress that exercises oversight of the other two branches of government, first through the power of the purse, and second through the approval of treaties, and third through the confirmation of appointments and the power of impeachment. In the case of the judiciary, Congress also has the extra power of setting the jurisdiction of Federal courts. The Supreme Court was called that because it was supreme over the judicial branch, not over congress or the executive.
Some argue that, since the Framers set up explicit anti-majoritarian provisions in the constitution, it is in some way the court’s job to defy the will of the majority. This is untrue. The framers were concerned that the tyranny of the majority could be just as damaging as any other form of tyranny, but the method they chose to restrain the will of the majority was through the structure of the government. Rather than a system of national referendum, they created a representative government. In that government, the Senate represented states. The House represented the people directly. And the president, through the use of the veto power, could override even simple majorities of the legislature. But even within that framework, they tried to ensure that the will of the people would ultimately prevail by creating a government with Congressional supremacy.
In fact, much of the Court’s arrogation of power has occurred simply because we have let it. The constitution specifically gives Congress the power to extend or limit the jurisdiction of lower federal courts, but equally importantly, the Supreme Court itself. Article III of the Constitution states that 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." [Emphasis mine]. There is, as it happens, only one case that speaks to this point, Ex Parte McCardle, from 1869. In that case, the Court unanimously upheld Congress's power to limit its jurisdiction, stating:
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"We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction, the court cannot proceed at all in any case."
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Restraining the Supreme Court requires no change to the Constitution; it merely requires Congress to act. Those who believe the Supreme Court is the final arbiter of the constitution would be well to read that document. The Supreme Court’s arbitrage ends wherever Congress says it ends.
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Mr. Brandenburg is, at least, right in thinking that this is beginning to look increasingly likely. Congress could plausibly restrict the Federal Judiciary’s ability to review cases in several areas, including school choice, judicial taxation, the use of Special Masters, and same sex marriage.
If they do, then judges have no one to blame but themselves. We have given great deference to judges in the past giving them wide latitude to rule on practically every issue under the sun. With that power and deference, judges owe it to the country to be restrained in their decisions, to resist the temptation to legislate from the bench, and to accord the appropriate deference due to both state governments, and to the other two branches of the national government.
The court has unbridled authority, but not unbridled power. Judges seem, in many cases to have conflated the two. But, court rulings are obeyed because we wish to obey them, not because the courts have, at the end of the day, any power to compel us to obey them.
As Andrew Jackson once said of a Supreme Court Ruling he disliked, “Justice Marshal has made his decision. Now let him enforce it.” We obey because we respect the rule of law, and because we presume judges to be impartial arbiters of it. When judges, through the unbridled use of judicial power, are no longer perceived in this light, it is then the judges who have invited disrespect of the rule of law, contempt for their desisons, and an increasing unwillingness to be bound by their decisions. By so doing, unbridled judicial power is itself a threat to an independent judiciary. The judges then bring upon themselves closer scrutiny of, and limitations to, their powers and responsibilities. Judges have preferred not to show restraint in the exercise of their powers. So it is now increasingly likely that other will exercise that restraint for them.
Congress has until now restrained itself from interfering because the principle of an independent judiciary is so important. But, the principle of an individual judiciary is less important than the principle of republican self-government, which is the highest principle of our polity, and one which it would be irrational to sacrifice in order to uphold a less important principle. If judges can levy taxes, restructure state legislatures, and strike down any public law they desire, then our form of government, whatever else it may be, is no longer a Republic.
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