Rein in the Imperial Judiciary

By a five-to-four decision, the Supreme Court of the United States (SCOTUS) has invalidated the 1996 Defense of Marriage Act (DOMA). By the same margin -- albeit with a different lineup -- the Court remanded the decision on California's Proposition 8 -- which had outlawed gay marriage and passed with a majority of the popular vote -- to the same court that had already declared the referendum's outcome unconstitutional.

The fact that an issue as profound as legal matrimony has been decided by five votes of unelected judges highlights the crisis the imperial judiciary poses for America. Unelected judges' power to overturn majority opinion on virtually any topic undermines popular government.

Lately it's almost always the Left's agenda being imposed by judicial fiat. What the left cannot win at the ballot box, they have gotten via federal court rulings.

The Constitution stipulates how the imperial judiciary can be reined in, and there is constitutional precedent for this procedure (Ex parte McCardle, 74 U.S. 506 [1869]).

The Constitution's Article III, Section 2, paragraph 2 gives SCOTUS original and appellate jurisdiction. The first sentence of that paragraph specifies the kinds of cases in which the Supreme Court has original jurisdiction.
The second sentence of Article III, Section 2, paragraph 2 specifies SCOTUS's appellate jurisdiction, which means cases initially tried in state and/or lower federal courts, and then appealed to the high court: "In all the other cases before mentioned [in Article III, Section 2, paragraph 2, first sentence], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make" (my italics).

Only a small part of the high court's case load is original jurisdiction. Most of its cases, especially those which engender the most controversy, come from the high court's appellate jurisdiction. SCOTUS's decision on DOMA came from appellate jurisdiction.

The Framers did not anticipate that the judiciary would become the pre-eminent branch of government. Alexander Hamilton's Federalist #78 reflects the Framers' conception of federal courts and their powers.

Hamilton contended that, of the three "departments" of government created by the proposed constitution, the judiciary would "always be the least dangerous to the rights of the Constitution" because it controlled neither "the sword" nor "the purse." Given the judiciary's "natural feebleness," it could never endanger "the general liberty of the people," but would be in "continual jeopardy of being over-powered, awed, or influenced by its co-ordinate branches..."

Hamilton veered close to the notion of judicial review. Noting that "[t]he interpretation of the laws is the proper and peculiar province of the courts," he discounted any potential threat from the imperial judiciary in two ways. First, when judging a legislative act to be contrary to the Constitution, the court would acknowledge the supremacy of the people, who were the Constitution's ultimate bulwark. Second, Hamilton implied that courts would judge only legislative acts; he wrote nothing about reviewing executive decisions.

Some indication of the Framers' low regard for SCOTUS can be found in John Jay's letter refusing John Adams's offer to nominate him to be Chief Justice in 1801. Jay, who had resigned as the first Chief Justice of SCOTUS in 1795, wrote that the high court lacked "energy, weight, and dignity." Desperately seeking a Federalist to restrain the newly elected Jeffersonians, Adams nominated Secretary of State John Marshall.

In Marbury v. Madison (1803), Marshall asserted the principle of "judicial review" which, in essence, is the claim that SCOTUS is the final authority on the Constitution's meaning.

Marshall's principle prevailed, although Andrew Jackson's reaction to his decision in Worcester v. Georgia (1832) -- "John Marshall has made his decision, now let him enforce it" -- indicates judicial review was not universally endorsed almost 30 years after Marbury.

Judicial review is firmly established now. Elites regard unelected judges as the law's final arbiters.

But the last twelve words -- italicized above -- of Article III, Section 2, paragraph 2, grant Congress the power to restrict SCOTUS's appellate jurisdiction. The basis of the imperial judiciary is SCOTUS's appellate jurisdiction which, when joined to the principle of judicial review, has enabled the high court vastly to expand its power.
Congress cannot alter SCOTUS's original jurisdiction without a constitutional amendment, which, given today's constellation of political alignments, would be extremely unlikely. The high court's appellate jurisdiction, however, can be and has been curtailed, and that can bring the imperial judiciary to heel.

SCOTUS acknowledged the constitutionality of Congress's power to limit its appellate jurisdiction in the Ex parte McCardle decision.

William McCardle, a rabidly pro-Confederate newspaper editor, was jailed for publishing articles advocating opposition to Reconstruction. Although McCardle invoked habeas corpus to secure his release, a federal Circuit Court judge remanded him to jail. McCardle appealed to SCOTUS under the 1867 Habeas Corpus Act, which granted the high court appellate jurisdiction in such cases. After the case was argued, but before the high court reached a decision, Congress suspended its appellate jurisdiction. SCOTUS unanimously validated Congress' action.

If Congress were again to restrict SCOTUS's appellate jurisdiction, Leftists -- who cheer federal courts when they invalidate laws or referenda they don't like -- would urge SCOTUS to overturn the McCardle precedent. Pettifoggers can always dreg up legal arcana.

Others before me have raised alarm at judicial usurpation of popular government. Among those who have warned against the corruption of the Constitution posed by judicial review and/or called for curtailment of the imperial judiciary are Judge Andrew Napolitano (The Constitution in Exile, 2006), radio talk show host and president of the Landmark Legal Foundation Mark Levin (Men In Black, 2005), Associate Supreme Court Justice Antonin Scalia (A Matter of Interpretation, 1998), former U.S. Attorney General Edwin A. Meese, III (Policy Review, 1997), and the late Judge Robert Bork (The Tempting of America, 1990), just to mention five.

Questions about the imperial judiciary are far from academic arcana. Almost from its beginning, the Supreme Court has been as much a political as a legal entity. Many astute observers, including Finley Peter Dunne's fictional Mr. Dooley observed from his south-side Chicago pub in 1901, "' Supreme Court follows th' election returns." Thirty-six years later, after Supreme Court Associate Justice Owen J. Roberts joined the court's majority in West Coast Hotel Co. v. Parrish -- this during Franklin D. Roosevelt's campaign to pack a Supreme Court that outlawed many of his early New Deal programs -- a wag coined the phrase "the switch in time that saved nine." More recently, in National Federation of Independent Businesses v. Sebelius (2011), Chief Justice John Roberts may have bowed to left-wing pressure, and once again, gave conservatives reason to worry about the imperial judiciary.

Don't hold your breath waiting for Congress to crimp SCOTUS's appellate jurisdiction. Many (most?) Republican legislators would probably blanch at the idea of creating what could be a constitutional crisis. But, for those grown weary of the imperial judiciary, the Constitution opens a legal avenue. We need to begin the journey.

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