This column first appeared Feb. 21 on American Greatness.
As someone who writes frequently on the topic of judicial activism, I am often asked, “What is the solution?” This is a vital question. Put another way—as I did in a previous essay at American Greatness—“Can Activist Judges Be Controlled?”
The short answer is: With great difficulty, yes. But if it’s a quick and easy answer you want, forget it. The current crisis took decades to develop. It won’t be resolved with a sweeping gesture.
The “imperial judiciary” is the result of myriad different influences, including the politicization of the law (the triumph of Legal Realism), the Left’s capture of legal academia, the transformation of the legal establishment (state bar associations and big law firms) into an elitist special interest group, and the conversion of the Senate confirmation process into a gauntlet to punish outspoken conservative nominees, such as Judge Robert Bork in 1987.
Understand, too: Congress is complicit in all of this. Congress helped foster a dysfunctional administrative state ruled by unaccountable bureaucrats and unelected judges. Congress has enacted incomprehensible statutes full of ambiguous terms, and delegated their interpretation to administrative agencies. Despite insolent judicial decisions brazenly misapplying laws, our elected representatives have consistently failed to rein in the black-robed tyrants. The immigration laws now defied by contemptuous judges in Hawaii, San Francisco, and elsewhere are, after all, congressional enactments. The judicial resistance is a challenge not only to the election of President Trump but also to the legitimacy of political decisions made by thelegislative branch of government. But does Congress care?
Supine Legislators Spurn Responsibilities
When President Obama usurped the legislative branch’s constitutional prerogatives with his Deferred Action for Childhood Arrivals program, Congress did nothing. When judges usurped legislative and executive authority, blocking the president’s travel moratorium and his attempt to rescind Obama’s lawless executive action on DACA, Congress did nothing—no criticism of the judges responsible, no threat of hearings, nor attempts to limit the courts’ jurisdiction over immigration cases, or cracking down on district court judges’ ability to issue nationwide injunctions. Nothing. Lawmakers’ response, rather, has been characteristically supine
So when I hear critics of the judicial resistance call for the impeachment of activist judges as a solution, I wonder who exactly in Congress is going to lead that parade. Even with Republican majorities in both chambers, our 535 senators and representatives cannot collectively pass a balanced budget, repeal Obamacare, fund a border wall, control rogue agencies, or cut federal spending. Indeed, the GOP Senate faces a backlog of outstanding judicial nominees awaiting approval, and just barely averted granting mass amnesty to 2 million illegal aliens with virtually no concessions in exchange.
These are the stalwarts who will impeach miscreant federal judges? Don’t make me laugh.
Judicial activism is a serious problem, with no easy solutions. Judicial term limits or elections for federal judges would require a constitutional amendment—a near-impossible hurdle. Ditto constitutional amendments (or a convention of the states) to “fix” all the erroneous decisions the Supreme Court has issued over the years, distorting the Constitution’s original meaning. What good would it do to amend the Constitution to overturn incorrect judicial decisions if the errant judges could simply misinterpret or ignore the amended language (as they did the original text)?
Pursuant to Article III, Congress has plenary power over the jurisdiction of the lower federal courts, and the appellate jurisdiction of the U.S. Supreme Court, but has shown no inclination to use that power to resist judicial encroachment, for fear of being accused of tampering with the “independence of the judiciary.”
This risible canard—the “independence” of the courts from the law itself—has been relentlessly promoted by the cheerleaders for judicial activism in the legal academy, commentariat, and bar, and Congress has no political will to resist it any more than they can manage to resist other popular tropes. The political scalding that Franklin Roosevelt received over his aborted “court packing” scheme in 1937 (which accomplished its goal of nudging recalcitrant justices to uphold New Deal reforms) would deter a cowardly Congress from pursuing this route.
“Borking” Originalists
As I previously reported (quoting “The Great One,” Mark Levin, certainly no squish on this subject), since the unsuccessful impeachment of Associate Justice Samuel Chase in 1804, the “limited and extraordinary power of Congress to impeach and remove a judge from his post has been denuded to the point where a judge or a justice must act in a flagrantly illegal fashion before that conduct would be considered beyond the Constitution’s ‘good behavior’ standard as it is currently interpreted.” This quote is from Levin’s excellent 2005 book, Men in Black: How the Supreme Court is Destroying America.
I share Levin’s assessment, which is not a bad rule of thumb as long as the Left dominates the Beltway media and Congress cowers in fear of being targeted by liberal special interest groups.
For example, imagine if People for the American Way, the Southern Poverty Law Center, or some other equally phony left-wing propaganda outfit decided to “bork” sound originalist judges already confirmed to the federal bench, such as Justices Samuel Alito, Clarence Thomas, or Neil Gorsuch. If “impeachment” was a viable political tool, requiring no more than a majority vote to remove a sitting judge, aggressive Democrats would be clamoring to impeach conservative judges day and night.
In fact, liberal journalists have already begun making noises about impeaching Justice Clarence Thomas, for events that allegedly occurred at or before his confirmation hearings in 1991! Fortunately, the Samuel Chase “precedent” serves as a firewall to prevent this type of mischief, and it would behoove conservatives to think long and hard before re-opening that particular Pandora’s Box.
Ultimately, only one solution exists to the problem of judicial activism, and that is to restore a culture of respect for the modest judicial role contemplated by the Framers, honoring the separation of powers, reviving federalism, and demanding fidelity to the Constitution as written (not the “living Constitution” favored by progressives) on the part of all branches of the federal government—judicial, legislative, andexecutive.
We did not arrive at our current predicament overnight, nor can we escape from it easily or quickly. As a nation we must insist on constitutional government—“a republic, if you can keep it,” Franklin warned—and resolve to muster the political will to enforce the long-ignored Constitution entrusted to us by the Founding Fathers. There is no alternative.