On Our Judicial Overlords

One of the reasons I was not persuaded to vote for Donald Trump in the general election of 2016 was because I was not convinced the issues of judges was enough to overcome the Donald’s other deficiencies. First of all, I did not trust him to actually appoint constitutionalist (or originalist or whatever adjective we’re using these days) judges. On this, I was profoundly wrong. President Trump’s record thus far has been exceptionally strong. That he has almost totally ceded this aspect to the Federalist Society is a point in his favor.

But there was a more fundamental issue, and this has not been addressed. I argued then that even more appointments of constitutionalists to the bench would not solve the larger issue of judicial supremacism. Even if President Trump hits on 100% of his judicial appointments over four or even eight years, not only will he not have replaced all the terrible Clinton and Obama (and even some Bush I and II) appointments, he would leave unaddressed the basic question of the role of the judiciary in our constitutional republic.

And so we get decisions like this. Or even worse, this.

I’ll focus on the latter, because while the Oregon ruling was execrable on the constitutional merits, the latter is a grimmer reflection of the imbalance between the branches of government. Josh Blackman’s analysis at the link I provided thoroughly dismantles the legal reasoning of Judge Aslup. Thomas H Crown’s brutal twitter thread also highlights the issues with this ruling. In the end, the judiciary unreasonably meddled in executive branch affairs.

As Crown’s twitter thread shows, the issue is not just with the judiciary. The other branches of government have carelessly ceded power, or have been ineffectual agents in reclaiming lost authority. As Crown puts it in one tweet, “The problem with our system of government right now is diffuse responsibility and a categorical unwillingness by the legitimately-enumerated-and-responsible actors to retake their power and responsibility.” Expressly put, “The judiciary has absolutely no power to order the Executive to retain a program the Executive created ex nihilo and contrary to the express terms of a lawfully-enacted, Constitutional statute.”

As Crown puts it, the legislature should feel doubly aggrieved: by an executive (Obama) who unlawfully grabbed power, and now by a judiciary stepping in to exceed the executive branch’s decision-making capabilities. And as Crown correctly says, “The system is now designed to funnel power to the only unelected — and therefore least-inclined to republican responsibility — branch, then the second-least responsible, and leave the most electorally-responsible one the one with the least power.”

Unfortunately, there’s no easy solution to this mess. It has been a slowly evolving (or, really, devolving) process that began over a century ago. It would take a cultural shift to restore the equitable balance of power.

Some have suggested stripping courts of their judicial review authority in certain defined cases. This is a potential solution, but as always, it’s not necessarily a perfect one. An independent judiciary is a necessary force, and we cannot simply trust the executive and legislative branches to act within their prescribed constitutional parameters. Impeachment is another possibility, but it’s one few Americans have a stomach for. The reality is, any attempt to rein in the judiciary could have unintended consequences, and would be just as disastrous from a constitutional point of view. After all, the Supreme Court regularly intervened during the Obama administration when it attempted to exceed its constitutional authority, and those were justified and rational interventions. Had the Court not been there to act as a break, who knows what else the administration would have attempted.

As I said, there’s no easy fix. But for a nation that is always carrying on some kind of conversation or another, this seems to be a conversation actually worth having.

Revamping the Court

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.