Not only was our federal republic crafted in a way that shared power between the federal government and the states, but it was also crafted to share power between three semi-independent but interrelated branches of government. Each of these branches has various “checks and balances” on the others.
The founders were brilliant thinkers and crafted a very good system, but it did, over time, develop a serious flaw. There are insufficient checks on the judicial branch.
This was observed and commented upon by the anti-federalists of the day (those who opposed the adoption of the U.S. Constitution), who feared that a mostly unchecked judicial branch would run roughshod over the legislative branch. These concerns were dismissed by advocates of the plan like Alexander Hamilton, who wrote:
It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.
Alexander Hamilton – Federalist #81 (excerpt)
Hamilton went on to explain that the legislature does enjoy a check on the judicial branch: it may impeach judges and, upon conviction in the Senate, remove them from office.
The courts — and especially the Supreme Court — have, however, often overstepped the bounds on their authorities and have not been subject to any effective checks by the other branches or by the people. Strangely, this has taken two opposite forms. Sometimes the court is too active, choosing to “legislate from the bench” and overrule or rewrite the laws that Congress has enacted. Sometimes the court is too passive, choosing to defer to the legislature even when it enacts laws that violate the plain text of the constitution.
The role of the court is to interpret and apply the laws as-written, except when they violate natural law or the plain text of the constitution, in which case the role of the court is to invalidate them. In either case, their job is never to apply their own independent thoughts on the prudence of the laws or constitution, or their political opinions, or what they think is best for America. Their job is to read the laws and the constitution and apply them as they are. Period.
Appointments
When making judicial appointments, I won’t apply any single-issue litmus test…but I will ensure that the people I choose have a deep and proper understanding of both natural law and the U.S. Constitution. I will expect them to always uphold the human rights to life, liberty, and property, and to always uphold the constitutional principles of federalism.
My main concern is not about their political views or their personal opinions about any particular issue. No, I’m concerned much more about their ability to just read the darn constitution, read the laws, and understand what they mean. The role of a judge is to apply these things as they are, not as they want them to be.
Additionally, upon making appointments I will demand that the Senate promptly perform its advice and consent role as required by the constitution.
Impeachments
As Hamilton rightly observed, the congressional check on the judicial branch is impeachment.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
U.S. Constitution, Article II, Section 4
Only one Supreme Court justice has ever been impeached: Samuel Chase in 1803. His impeachment was mainly on the basis of several procedural errors and Chase’s generally “intemperate and inflammatory” style. He was acquitted at the trial in the Senate in 1805. In recent history, impeachment has generally been used against federal judges only when they have committed some serious crime or official misconduct…assaults, bribes, and so on.
It would, indeed, be inappropriate to use impeachment as a political bludgeon. The failure of the case against Chase in the early days of the republic established a valuable precedent that Congress should not impeach judges just because it doesn’t like their style or their rulings.
But that doesn’t mean impeachment should be reserved only to serious crimes. Abdication of duty or violation of the provisions of the U.S. Constitution are valid reasons to impeach. After all, our judges — like all other federal officials — have sworn an oath:
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
5 USC ยง3331, Oath of office (excerpt)
I will advocate for the impeachment and removal from office of any federal judge, including any Supreme Court justice, who violates the provisions of natural law or acts in opposition to the plain text of the U.S. Constitution.
Improving the Checks
I will propose one or more constitutional amendments to improve the ability of the executive and legislative branch to impose checks upon the judicial branch. These will need to be passed either by Congress or by the states in a constitutional convention, and then ratified by the states, per the provisions of Article V. Some ideas worth considering:
- End lifetime appointments and set the term of service instead at an appropriately lengthy, but not unlimited term. This might be ten or fifteen years in length. At the end of a term, a judge may be either reappointed or replaced.
- Tied closely to the end of lifetime appointments would be the enactment of a two-term limit in any single judicial office, and a lifetime three-term limit at any level in the federal judiciary.
- Allow a super-majority of the Congress to override particularly egregious rulings. This, for example, might have occurred after the Supreme Court’s idiotic and wildly unpopular ruling in Kelo v. New London (see the property rights page).
These are inspired by The Liberty Amendments by Mark Levin. Levin proposes actual text for such an amendment, and several others, intended to restore the constitutional balance in our republic. I may quibble with some of the details, but Levin is generally on the right track.