Once again a tweet has inspired a blog post. This time it’s Andrew McCarthy:
SupCt argument for #Trump not doing it for me anymore. SupCt a super-legislature & conservatives should work to undo its role in our system.
— Andrew C. McCarthy (@AndrewCMcCarthy) July 24, 2016
McCarthy is spot on. Even assuming we can trust Donald Trump to appoint originalists to the bench – and I for one have strong doubts – the entire judiciary is too far gone for those appointments to mean much of anything.
One of our major failings in looking at the political landscape is we tend to only think of the big ticket items. In other words, we spend a lot of time discussing the presidency (and I’m no less guilty) but not much on the tons of other elected positions in this country. Similarly, when we think of the courts, we only think of the Supreme Court. But there are a number of inferior federal courts, and presidents have to make numerous appointments, not just one or two Supreme Court appointments.
These inferior courts can and usually do act like super legislatures as much, if not more than the Supreme Court (think the Ninth Circus, err, Circuit). Considering how few cases the Supreme Court takes each year, these courts regularly make decisions that are as impactful as any the Supremes hand down.
Daniel Horowitz has written about this in his book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America. Horowitz’s main subject is illegal immigration, and he goes over in painstaking detail the numerous court decisions – primarily at the lower level – that have disregarded both the legislative will and the plain meaning of the constitution in order to give rights to illegal immigrants and to prevent methods of deporting or punishing them.
This applies to all subject matters, however, and Horowitz believes that we have reached a point where we can no longer think that appointing the right judges will fix anything. He notes the number of Reagan, Bush I, and Bush II appointments who have been just as eager as any Carter, Clinton, or Obama appointment to ignore the plain meaning of the constitution in order to promote their own policy preferences. Even setting these aside, President Obama has appointed roughly one-third of sitting circuit and appellate judges, and it will take years to unseat these.
He digs through history and chronicles the slow evolution of how the courts have undermined our nation’s sovereignty through these decisions, slowly transforming our country in the process. The judiciary has well exceeded its constitutional mandate, basically making a fool of Alexander Hamilton and his boast that it would be the least dangerous branch.
Horowitz does not mince words, and he calls for a strict curtailment of the subject matter over which the judiciary has oversight. Essentially it would be stripped of much of its jurisdiction and could only rule over a narrow set of issues. Alternatively, the courts could be required to have super-majorities in order to declare state or federal acts unconstitutional.
This will no doubt be seen as a bridge too far by some, but I think Horowitz has provided some interesting fodder for discussion. It is an unavoidable fact that the federal judiciary has become a monster, and in effect has become a super-legislature. This is well beyond what the Framers intended, and frankly all chips must be on the table in considering what the remedies are.
Getting back to McCarthy’s tweet, some of the comments are quite revealing. This is all a pipe dream, according to many. Perhaps. But that’s beside the point – or rather, it IS the point. We can’t continue on this path where we pretend getting to nominate a few judges is going to make a difference. The problem is much more endemic, and if we lack the will to address this runaway judiciary, then everything else we discuss is what’s beside the point.
The Cranky Conservative 