The Rocky Road to Ending Judicial Tyranny

Despite the Constitution’s Framers’ intent, the United States does not have a government consisting of three coequal branches.  Rather, Americans suffer under a judicial tyranny.

In the aftermath of the Supreme Court’s recent rulings on Obamacare, racial consequences of housing laws, and same-sex marriage – just to list three – there can be no question that SCOTUS dominates American government and society.  Decisions by a bare majority of nine unelected judges, appointed by the president and approved by 50+% of 100 senators, who have lifetime tenure and are completely independent of public opinion, dictate public policy for the entire nation.

As Mark Levin, an attorney and president of the Landmark Legal Foundation, wrote in Men in Black (2004), SCOTUS justices “have co-opted authority that has not been granted to them [by the Constitution]; they have usurped the authority that has been granted to Congress, the president, and the states, and they continually behave like an Olympian council.” 

There are other ways in which the SCOTUS’s justices can be said to constitute a judicial tyranny.  First, even though the Constitution does not require a SCOTUS justice to be a lawyer, all nine current justices graduated from law school.  All the justices who have been appointed to SCOTUS since 1941 have had JDs.

Second, and perhaps more important, the six men and three women now on the court graduated from just two law schools.  Six – Bader Ginsburg, Breyer, Kagan, Kennedy, Roberts, Scalia – graduated from Harvard Law School, and three – Alito, Sotomayer, Thomas – got their JDs from Yale Law School.

The fact that, as the recent SCOTUS decision on same-sex marriage shows, four Harvard Law School grads, joined by one Yalee, can dictate American law on this vital subject forces us to confront “an inconvient truth”: as few as five SCOTUS justices, unrepresentative of, insulated from, and unresponsive to the citizenry, can dictate policy to the rest of the country.

An obvious question is, can anything be done to reduce the Supreme Court’s power, a situation that has been developing since Chief Justice John Marshall’s decision in Marbury v. Madison, 5 U.S. 137 (1803), which established the principle of judicial review?  As Mark Levin noted in The Liberty Amendments (2013), that “ruling altered and expanded the Court’s limited authority to adjudicate civil disputes and criminal complaints into a judicial oligarchy with few institutional limits on its power.”  In the 212 years since that decision, the notion of judicial review – which asserts that SCOTUS can declare congressional acts, presidential decisions, and state statutes unconstitutional – has been parlayed into judicial supremacy.   

Judicial supremacy – which many interpret as “judicial tyranny” – is a far cry from Alexander Hamilton’s claim in The Federalist #78 that the judiciary “will always be the least dangerous to the political rights of the Constitution.”  Because the judiciary lacked the powers of the purse and of the sword, Hamilton contended that it had “neither FORCE NOR WILL but merely judgment [my italics][.]”

Hamilton’s benign view of the federal judiciary’s power was countered by the Anti-Federalist Robert Yates, a New York state judge and delegate to the Constitutional Convention in 1787, who probably wrote a series of “op-ed” essays under the pen name “Brutus.”  In his 11th essay, “Brutus” contended that “[t]he opinions of the supreme court … will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications.  From this court there is no appeal” (my italics).  

Indirect testimony on behalf of “Brutus’s” view of the federal judiciary’s power, rather than Hamilton’s, can be adduced from the tack recommended by at least two analysts who are critical of the Supreme Court’s domination of American politics.  Both of the Court’s critics have offered constitutional amendments.

One of Levin’s “Liberty Amendments” – which would be proposed by conventions called by at least two thirds of the state legislatures – calls for term limits for associate justices who would serve staggered terms, and sets a 12-year limit on how long someone can be Chief Justice.  Although presidents would still appoint members of the Supreme Court, who would be subject to senatorial approval, a three-fifths vote by both houses of Congress, which could not be vetoed by the president or nullified by a court, could overturn a Supreme Court’s decision.  A Supreme Court decision could also be overturned by a vote of three fifths of the states’ legislatures, which could also not be nullified by the courts, Congress, or the president.

Senator Ted Cruz (R, TX), who is a candidate for the GOP’s presidential nomination, proposed a constitutional amendment that would “render the justices [of SCOTUS] directly accountable to the people.”  Cruz proposed that “every judge, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years.”  Any judge deemed unworthy of retention by a majority of the electorate and by majorities in at least half of the states “will be removed from office and disqualified from future service on the Court.”  Cruz believes that “giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability.”

Others, such as Michael Grable, call for either impeaching a majority of current SCOTUS justices or at least congressional action to nullify judicial review.

Regardless of their specific thrust, all proposed amendments suffer from the same problem: it is extremely difficult to amend America’s organic law.  As much as anything, that explains why there have been only 27 amendments in the 227 years since the Constitution was ratified.

The same can be said for efforts to impeach federal judges.  Although the Constitution allows Congress to remove a federal judge by impeachment and conviction, American history shows that this tack has seldom been taken.  No SCOTUS justice has been impeached and convicted since 1804.  Only eight justices of lower federal courts have been impeached and convicted over the years, most before 1980.  Alcee Hastings, a federal court judge who was impeached and convicted in 1989, now sits in the House of Representatives.

I know of no attempt by Congress to rescind SCOTUS’s power of judicial review.

I suggest a different approach.  As I proposed in an essay on this blog in July 2013, Article III, Section 2, paragraph 2 of the Constitution permits Congress to limit the appellate jurisdiction of all federal courts.  This power has been exercised at least once, and the Supreme Court acknowledged Congress’s power in its Ex Parte McCardle decision, 74 U.S. 506 (1869).  (Whether today’s emboldened SCOTUS justices would accept limits on their appellate jurisdiction is an interesting question.)  Since most of the major decisions SCOTUS makes fall under its appellate jurisdiction, restricting the type of cases the Court could take would seriously curtail “judicial tyranny.”

There’s only one big problem: over half the members of Congress would have to summon the courage to take on SCOTUS and its allies.  Don’t hold your breath waiting for Congress-members to exhibit courage.

Despite the Constitution’s Framers’ intent, the United States does not have a government consisting of three coequal branches.  Rather, Americans suffer under a judicial tyranny.

In the aftermath of the Supreme Court’s recent rulings on Obamacare, racial consequences of housing laws, and same-sex marriage – just to list three – there can be no question that SCOTUS dominates American government and society.  Decisions by a bare majority of nine unelected judges, appointed by the president and approved by 50+% of 100 senators, who have lifetime tenure and are completely independent of public opinion, dictate public policy for the entire nation.

As Mark Levin, an attorney and president of the Landmark Legal Foundation, wrote in Men in Black (2004), SCOTUS justices “have co-opted authority that has not been granted to them [by the Constitution]; they have usurped the authority that has been granted to Congress, the president, and the states, and they continually behave like an Olympian council.” 

There are other ways in which the SCOTUS’s justices can be said to constitute a judicial tyranny.  First, even though the Constitution does not require a SCOTUS justice to be a lawyer, all nine current justices graduated from law school.  All the justices who have been appointed to SCOTUS since 1941 have had JDs.

Second, and perhaps more important, the six men and three women now on the court graduated from just two law schools.  Six – Bader Ginsburg, Breyer, Kagan, Kennedy, Roberts, Scalia – graduated from Harvard Law School, and three – Alito, Sotomayer, Thomas – got their JDs from Yale Law School.

The fact that, as the recent SCOTUS decision on same-sex marriage shows, four Harvard Law School grads, joined by one Yalee, can dictate American law on this vital subject forces us to confront “an inconvient truth”: as few as five SCOTUS justices, unrepresentative of, insulated from, and unresponsive to the citizenry, can dictate policy to the rest of the country.

An obvious question is, can anything be done to reduce the Supreme Court’s power, a situation that has been developing since Chief Justice John Marshall’s decision in Marbury v. Madison, 5 U.S. 137 (1803), which established the principle of judicial review?  As Mark Levin noted in The Liberty Amendments (2013), that “ruling altered and expanded the Court’s limited authority to adjudicate civil disputes and criminal complaints into a judicial oligarchy with few institutional limits on its power.”  In the 212 years since that decision, the notion of judicial review – which asserts that SCOTUS can declare congressional acts, presidential decisions, and state statutes unconstitutional – has been parlayed into judicial supremacy.   

Judicial supremacy – which many interpret as “judicial tyranny” – is a far cry from Alexander Hamilton’s claim in The Federalist #78 that the judiciary “will always be the least dangerous to the political rights of the Constitution.”  Because the judiciary lacked the powers of the purse and of the sword, Hamilton contended that it had “neither FORCE NOR WILL but merely judgment [my italics][.]”

Hamilton’s benign view of the federal judiciary’s power was countered by the Anti-Federalist Robert Yates, a New York state judge and delegate to the Constitutional Convention in 1787, who probably wrote a series of “op-ed” essays under the pen name “Brutus.”  In his 11th essay, “Brutus” contended that “[t]he opinions of the supreme court … will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications.  From this court there is no appeal” (my italics).  

Indirect testimony on behalf of “Brutus’s” view of the federal judiciary’s power, rather than Hamilton’s, can be adduced from the tack recommended by at least two analysts who are critical of the Supreme Court’s domination of American politics.  Both of the Court’s critics have offered constitutional amendments.

One of Levin’s “Liberty Amendments” – which would be proposed by conventions called by at least two thirds of the state legislatures – calls for term limits for associate justices who would serve staggered terms, and sets a 12-year limit on how long someone can be Chief Justice.  Although presidents would still appoint members of the Supreme Court, who would be subject to senatorial approval, a three-fifths vote by both houses of Congress, which could not be vetoed by the president or nullified by a court, could overturn a Supreme Court’s decision.  A Supreme Court decision could also be overturned by a vote of three fifths of the states’ legislatures, which could also not be nullified by the courts, Congress, or the president.

Senator Ted Cruz (R, TX), who is a candidate for the GOP’s presidential nomination, proposed a constitutional amendment that would “render the justices [of SCOTUS] directly accountable to the people.”  Cruz proposed that “every judge, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years.”  Any judge deemed unworthy of retention by a majority of the electorate and by majorities in at least half of the states “will be removed from office and disqualified from future service on the Court.”  Cruz believes that “giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability.”

Others, such as Michael Grable, call for either impeaching a majority of current SCOTUS justices or at least congressional action to nullify judicial review.

Regardless of their specific thrust, all proposed amendments suffer from the same problem: it is extremely difficult to amend America’s organic law.  As much as anything, that explains why there have been only 27 amendments in the 227 years since the Constitution was ratified.

The same can be said for efforts to impeach federal judges.  Although the Constitution allows Congress to remove a federal judge by impeachment and conviction, American history shows that this tack has seldom been taken.  No SCOTUS justice has been impeached and convicted since 1804.  Only eight justices of lower federal courts have been impeached and convicted over the years, most before 1980.  Alcee Hastings, a federal court judge who was impeached and convicted in 1989, now sits in the House of Representatives.

I know of no attempt by Congress to rescind SCOTUS’s power of judicial review.

I suggest a different approach.  As I proposed in an essay on this blog in July 2013, Article III, Section 2, paragraph 2 of the Constitution permits Congress to limit the appellate jurisdiction of all federal courts.  This power has been exercised at least once, and the Supreme Court acknowledged Congress’s power in its Ex Parte McCardle decision, 74 U.S. 506 (1869).  (Whether today’s emboldened SCOTUS justices would accept limits on their appellate jurisdiction is an interesting question.)  Since most of the major decisions SCOTUS makes fall under its appellate jurisdiction, restricting the type of cases the Court could take would seriously curtail “judicial tyranny.”

There’s only one big problem: over half the members of Congress would have to summon the courage to take on SCOTUS and its allies.  Don’t hold your breath waiting for Congress-members to exhibit courage.