In last weeks Republican presidential primary debate, candidate Newt Gingrich spoke of allowing Congress the power to subpoena federal judges in order for them to explain radical opinions. I can’t stress this enough — this is the greatest idea I have heard throughout this election cycle.
The Iowan conservative base no doubt loved it. Moderates and liberals were no doubt very disturbed by it. I am sure republicans like David Brooks thought it was dangerous or some other nonsense. It is important for us to know up front that this is a novel and right-wing idea. But it is a great one nonetheless. Furthermore I am under no illusions, for POTUS to get away with ignoring a SCOTUS ruling or for the Congress to take on the High Court without political backlash, it is an extremely heavy lift. Ignoring a Supreme Court decision as Newt suggested must be done with the utmost wisdom, calculation and planning.
Someone needs to reel in SCOTUS
The Supreme Court in, Marbury v. Madison, created the legal doctrine of judicial review wherein the Court could henceforth declare any law passed by the people of the United States through its elected representatives valid or invalid by discussing whether in their opinion, the action in controversy was “constitutional” or “unconstitutional”. Ever since, the Court has grown stronger and stronger.
Originally, the purpose of the Court was vague and a position on it was not something to be desired. The court was of such little importance that as the White House was built for the President and the Capital for the Congress, the Supreme Court was thrown into a room in Congress’ basement. It wasn’t until the last 100 years the Court became important enough in the eyes of the people to require its own separate chambers.
The original decision was only allowed to stand as it fell in line with what the President desired and thus no harm, no foul. The power wasn’t then used again for half of a century.
Between now and then, the Court has become an oligarchy, which Gingrich quoted Lincoln as saying. The Court is a distinguished class of elites all of which have graduated from either Harvard or Yale and dictate law to the people of the United States without any oversight.
The scene has become a sad sight to behold as Presidents nominate justices and hope that they act responsibly once they are no longer held to account. And what does it take for the Court to change laws? A unanimous decision? Three-quarters of the Court? Two-thirds of the Court? No. A simple majority of five Harvard of Yale graduates who are unelected and unaccountable determine whether our laws are ok or not. On controversial positions, four justices may vehemently disagree on the constitutionality of a decision, but only the fifth vote matters. Through judicial review, cowardly Congresses , and judicial activists, the Supreme Court truly has become “Supreme” where nine Americans now truly hold the position of the Supreme over the rest of the nation.
The Court has become an all powerful group of academics that may impose their will on the American people fairly easy. If all 330 million Americans, the Congress and the President of the United States believed a position to be correct, it would not matter if five people on the Supreme Court disagreed.
Technically, a Constitutional amendment could bypass the Court but in our fractured political system, it has become impossible to pass a bill, let alone an amendment, with bipartisan support. This was never the intention of the Founders and this power is not located within the Constitution. We need to consider slowly reigning the Court back in.
These justices are just people. These nine people don’t have special or privileged information concerning the constitution that the rest of us are not privy to. Constitutional law is not rocket science. Just about anyone can study the Constitution and the pivotal and relevant case law over the course of a few days in order to make an informed opinion on the state of the law.
While we should respect the Justices for the positions that they hold, the justices themselves have become nothing more than partisan hacks pushing their view just like any other legislature. George Washington would have laughed if he had been told that the Court had the authority to force his hand. Andrew Jackson actually did laugh.
On issues such as commerce, federalism, immigration and of course, abortion, we need to begin discussing whether it is even within the Court’s jurisdiction to mandate law to sovereign states, effectively passing the legislature, president and people.
A Radical Idea.
To be sure, the idea of stripping the Court of its omniscient authority is radical. But any idea worth its salt is radical in the beginning, before becoming mainstream.
Two years ago, as I sat in my Constitutional Law class in law school, the professor and other students scoffed at the idea that an individual mandate would be considered unconstitutional. They aren’t scoffing anymore. Barry Goldwater was a joke candidate for president. Conservatism isn’t a joke anymore. “Redistributing the wealth” was a socialist ideal on the fringe at one point, it isn’t fringe anymore. The ideas of today are the policies of tomorrow. We need to start discussing what to do about the Courts.
Most new and novel ideas start on the fringe, but if they are properly articulated and defended, they begin migrating toward the middle. We need to have a serious discussion on the powers and role of the Supreme Court to dictate law to the rest of us without any accountability. I applaud Newt Gingrich for opening up this discussion last week.
The Court’s opinions are called opinions for a reason. Now days, we refer to SCOTUS opinions as “rulings.” They aren’t supposed to be. The only reason the Court has the power to rule the rest of us is because we the people have been happy to cede the power when it benefited our political point of view. It shouldn’t be that way. We can agree with an outcome while still being outraged that the Court would even delve into such a topic.
Conservatives vs. Liberals.
This is a difficult sell on the political stage, especially for conservatives as it benefits conservatives more than liberals. The reason why is simple.
Conservatism by definition seeks to stick with the ideals that made us great while modern progressivism believes in the idea of pushing our society “forward” towards a new utopia that purges society from the old evils that nag us. Conservatives, for their part, wish that many evils like sickness, failure, discrimination and poverty did not exist but realize that in a broken world they always will and that the Church and private citizens as well as the free market (by using evils like greed to bring out the best in products and services) is the best way to achieve such goals.
Conservatives are not seeking to achieve large scale change as liberals are. The left is the party that is seeking monumental change. The reality is that large scale change is frustrating and must occur incrementally through legislatures. Unless you use the Courts. Then and only then can your view be pushed through quickly bypassing the need to change minds and hearts. Thus, Conservatives are less likely to attempt to expand rights through the courts while liberals are more likely to try. That has been the history.
By definition, the recent landmark cases that have come out in favor of the conservative viewpoint are actually dealing with enumerated constitutional issues. For instance, free political speech through the Citizens United case deals directly with our First Amendment rights, gun rights (Heller)deals directly with the Second Amendment and partial birth abortion (Carhart) deals directly with the Fourteenth Amendment. In the inverse, abortion (Roe), DOMA (currently moving through the courts) , school prayer ( Engel & Abington), evolution ( Scopes), affirmative action (Gruttinger ) and privacy (Griswold) aren’t even mentioned in the Constitution, except for the Fourteenth Amendment which protects life and would prohibit affirmative action.
Liberals attempt to create new rights while conservatives attempt to protect existing rights. This is why the fight to protect the Constitution from the Supreme Court itself falls to us.
Where does the Court get this power?
For the free people of the United States to chafe under a dictatorial Supreme Court is unconscionable. Why should the Supreme Court determine the outcome of the political fights that we have? Why should SCOTUS tell the Obama Administration or the sovereign state of Arizona how to deal with immigration? Why should it be able to tell Obama he can’t have his healthcare law? Why should it be able to tell states what restrictions can be put on infanticide?
This power has been taken from the Congress and the President. The Court should be the protector of the Constitution. That means, at most it should strike down laws that violate the constitution (a healthcare mandate) while never creating new rights.
That is the opposite of what the Court has done. In Planned Parenthood v. Casey the Court told us that some restrictions on abortion were “Constitutional” while other restrictions were not. In Gruttinger v. Bolling, the Court put us on notice that affirmative action was Constitutional for approximately 30 years, but after that, it would then be deemed “Unconstitutional.” These decisions are bad jokes. Really, the Constitution provides time limits? The right to privacy is in the Constitution but doesn’t cover all abortions, but only the ones the state permits? It is a judicial circus.
Liberals often times argue that there are judicial activists on both sides of the aisle, while this is
certainly true in some circumstances, the overwhelming majority of activists are on the left. A judicial activist isn’t defined by one who takes action. A judicial activist is a judge who actively creates new rights.
Defending the Constitution from attacks on peoples rights should be the job of the Courts. Striking down a healthcare mandate, striking down a speech restriction, striking down a Jim Crowe law that infringes on civil liberties due to race, striking down an impediment to voting, striking down a restriction on gun rights — all of these restrictions come under the purview of protecting the Constitution, the job of the Courts. If judicial review is to exist at all, if is for this reason.
Creating new rights under the Constitution is not the role of the Court. The only possible explanation for allowing a Court to create a new right would come under the Ninth Amendment, but who has surmised that this power belongs to the Courts? “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This provides no affirmative power for the Courts to create new rights. The rights belong to the people. Not for the Court to grant or deny.
Creating new rights for abortion doesn’t fall within the responsibilities of the Court. For instance, had the 1973 Roe v. Wade decision been a referendum based on a certain enumerated right or a specific statute affecting an enumerated right, the Court at the most (and this is arguable) could have only opined on the constitutionality or unconstitutionality of the decision. That is all. All other powers go to the states, rendering Griswold v. Connecticut (The precursor to Roe) a states rights issue. But creating a new right is not part of the equation.
Should we put term limits on Justices as Rick Perry argues? Probably, but it is a heavy lift for little pay off. Justices will still have the power to run amok for the ten to twenty years they sit on the bench. The solution for a government of the people is to give the power back to the governed. Does anyone actually believe that the people are governing themselves when the Supreme Court rules?
Abolishing Circuit Courts of Appeals.
The idea of abolishing the Ninth Circuit was also discussed in the most recent debate by Newt Gingrich. Obviously this idea is an unnecessary partisan exercise. If judges act unconstitutionally they should be impeached. If they break their oath to protect and uphold the Constitution by declaring “under God” unconstitutional, they should be impeached, but we can’t get into disbanding courts we don’t agree with. In fact, the strength of federalism is in the ability of local government to govern by local standards rather than to adhere to a national standard.
There is no doubt that lawyers, judges and law school professors will find the idea of reigning in the Courts ridiculous, but the approval of elites should have no bearing on what is right and what was the intention of the founders. The only reason we are where we are is due to tradition.
Conservatives that want action are going to have to eventually ask themselves whether they are going to wait around for another few generations in the hopes that the political winds blow in the justices that rule their way or whether they are going to take back control of their government. The right answer is obvious but not easy. The important thing is that these ideas be floated today so that they can become the policy of tomorrow. I won’t be voting for Gingrich in the primary but his courage on this issue certainly raises his profile in my book. The next republican president needs to defy the Supreme Court. Not on abortion, gun rights, free speech, labor law or anything else with widespread support.
The next president take it slow. He should wait for an absurd decision to come from the Court without the hoopla of interest groups or the sex appeal of civil rights. He should take a case on maritime law for example, that affects few people, and he should ignore that decision. He should instruct his administration and agencies to go about business as usual. The groundwork for judicial review took decades to lay. To reverse the trend, it will at least take several decades. But the precedent can be laid immediately. As President Andrew Jackson famously quipped, “John Marshall has made his decision, now let him enforce it!” It is time to take back our government.