Meridian Magazine ::How Can an Out-of-Control Federal Judiciary Be Reined In?

This is the 11^th article in a series designed to help Meridian readers better understand the Constitution of the United States so that, informed, we may recognize how far we are wandering from its original principles.

In this article Professor Lewis addresses what is becoming a more urgent question, “What can be done about judicial usurpation?

The Supreme Court has not stayed true to the charge given it to preserve the original allocations of governing power between the federal government and the states. It has gone beyond its original mandate exercising will rather than just judgment as explained in Federalist No. 78. Consequently, the states have been extremely hampered in their ability to control the moral environments within their borders. Their traditional police powers have been greatly diminished by the libertarian mandate incrementally imposed on them by the U.S. Supreme Court. Whereas our founders and framers believed that the base of morality and virtue in the people had to be successfully maintained in order for liberty to be preserved, the Court has hindered the states’ ability to maintain that base. Like the proverbial frog that was cooked slowly by degrees, we have lost our democratic right to local self-government so gradually that few still recognize any danger.

In the closing articles of the series, I will discuss what can be done to recapture some of our lost philosophic and political ground assuming we can recover our wits about us. As mentioned in an earlier article, while the Supreme Court is not democratically controlled, it is politically influenced. As R. Kent Newmyer observed about the earliest days of the Marshall Court:

“The Court and its chief justice discovered the great truth that political calculation and judging, in the American constitutional system, could never be entirely separate.”^{^[1]}

We will look for clues from our past to see what can effectively be done today to apply political pressure for change.

Educate Yourself And Improve Your Ability To Express Yourself Intelligibly And Persuasively

As Thomas Jefferson observed: "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."^{^[2]} So before anything can be effectively done, people have to become educated about their constitutional heritage – they must understand the basics in order to judge the propriety of what they see playing out before their eyes both politically and legally in the courts. That has been the underlying purpose of this series of articles.

Before the advent of radio, television, the Internet, computer games, etc., people used to discuss things more with their friends and neighbors. We had a more politically astute populace. We need to regain the willingness to engage people in such dialogue. We need to discuss these things with our children and grandchildren so that the education they receive in school will be enhanced and extended such that they understand this critical part of their American history. We cannot rely upon our public school teachers to do it for us for most of them are ignorant of it or philosophically disagree with it.

Be Careful Who You Vote For, And Actively Get Involved In The Campaigns Of Those You Finally Choose As Your Candidates

One of your most important political inputs is in electing the President. Who the President chooses to be federal judges can have a long-term impact on society that will stretch well beyond the end of his own term as President. This is one of the most important issues voters should consider in making their choices among competing presidential candidates. Once you have carefully chosen your candidate, actively help his campaign to succeed.

2004 is a Presidential election year. George Bush and John Kerry are quite different in their outlooks on what type of people they think should serve as judges on the federal bench. You should study their speeches and read various news accounts about them to try to determine who believes in judicial activism and who does not because you can bet that each will choose judicial nominees who philosophically agree with his own personal view of federal power and authority.

Concerning members of the House of Representatives, as Federalist No. 44 says, the first defense against federal usurpation is in electing representatives who will not tend to usurp power in the first place and in replacing those who have, with other representatives who will annul any prior usurpations.^{^[3]} Now that Senators are popularly elected too, the same can be said about them. You should also look very closely at the judicial philosophies of the various senatorial candidates in your state since they ultimately have control over whether or not the president’s judicial nominees actually get installed as judges.

Aside from trying to elect the right people in the first place, we also need to pressure the powers that be. The traditional means of doing so is writing your political representatives both federal and state. Another way is to ask questions about their positions on things when given the opportunity in public meetings that are open to you.

As you express yourself in writing, edit and re-edit your work several times over to increase its persuasiveness and excise anything that would give the impression of shrillness or extremism. Your finished work should appear to be well reasoned and the product of thoughtful deliberation. It probably should be short and to the point and you should be careful about its tone. Have a trusted friend or two read your work to help you accomplish what you want to in your finished product. Often times they can see problems or weaknesses that you cannot – what may seem clear to you, may not effectively come through in your letter to the mind of the your intended audience or may even have an unintended negative effect on your audience.

Before talking about putting political pressure on the federal judiciary, consider a connected legislative matter worthy of consideration. The ACLU is at the forefront of trying to achieve total separation of church and state. They bring law suits to remove the Ten Commandments from public places, stop schools from leading their students in the Pledge of Allegiance, etc. Whenever they win, they get attorney’s fees under the 1976 Civil Rights Attorney’s Fees Award Act.^{^[4]} In other words, the taxpayers are forced to involuntarily fund their legal activities.

For example, when they and similar organizations sued to get the Ten Commandments removed from the State Judicial Building in Alabama, their group was awarded $540,000.^{^[5]} When the Boy Scouts of America (BSA) prohibited homosexuals from serving as leaders, they became a litigation target for the ACLU. In its fight to get the courts to prohibit the BSA from using San Diego’s Balboa Park, the ACLU was awarded $790,000 plus $160,000 in court costs.^{^[6]} Kentucky taxpayers had to pay the ACLU $121,500 in its action to remove the Ten Commandments outside the state capital.^{^[7]}

So the taxpayers are being forced by the courts to fund the destruction of our political memories of our religious roots. Whereas our founders saw a need to publicly support religion, today’s federal courts feel it appropriate to drive religion entirely out of the public square and the ACLU and other such groups are profiting handsomely in the process at taxpayers’ expense. This is yet another example of how the present-day meaning of “rights” has fostered minority control over a very important public issue. We should write to our Representatives and Senators to repeal or amend that federal act to stop this type of abuse.

Moreover, we should complain to them about the federal courts ruling the way they do on such matters through judicial activism where their opinions about public policy effectively trump those of democratic majorities.

Once you have written your letters, encourage your friends and neighbors to write their own letters in the same manner. If enough people got involved and politicians sensed a growing concern among their constituents, about judicial activism, pretty soon it would cause them to start talking about these issues in their public speeches.

Federal judges are mindful of the political environment – they watch the news and read the papers just like everybody else. If our judges sensed great public revulsion arising because of their activism, they would probably moderate their behavior. If the President, many members of Congress, Governors, and state legislators started to strongly complain about the Supreme Court in public, like President Bush did in his State of the Union address in early 2004, the judges would probably take notice. They know how important public trust and confidence in the judiciary is and would probably back off if they sensed that the public could no longer be fooled about the illegitimate character of their judicial activism. Remember what happened with the political pressure exerted by President Franklin Delano Roosevelt during the Great Depression. As discussed in a prior article, his public criticism of the court and his threats to change the makeup of the court caused a couple of judges to change the way they voted and dramatically changed the philosophic direction of the court during the late 1930s.

Consider a more recent example. The U. S. Supreme Court got a lot of criticism for stepping in and stopping the Florida Supreme Court from overriding the Florida legislature’s pre-established procedures for dealing with election disputes regarding the Presidential election of 2000.^{^[8]} Regarding such elections, Article II, Section 1 of the U. S. Constitution provides:

“Each state shall appoint [Electors], in such Manner as the Legislature thereof may direct....” (emphasis added)

The U. S. Supreme Court stopped the recount process ordered by the Florida Supreme Court allowing the Florida Secretary of State’s declaration of the winner – which was determined by state statutory law – to become final. Ever since, many people still accuse President Bush of “stealing the election” and criticize the Court for its complicity in that theft even though the recount process funded by the national news media and performed after the election results were finalized, verified that President Bush did, in fact, win Florida.^{^[9]}

Some claim that the U. S. Supreme Court was performing judicial activism on behalf of conservatives in entering the fray. But how could that be so when the Constitution clearly states that the state legislatures have the authority to determine how Presidential Electors are appointed, not the state judiciaries? By stopping the Florida Supreme Court from imposing its own rules contrary to those set forth by the Florida legislature, was the U. S. Supreme Court not simply enforcing the above quoted portion of the Constitution? How could that be legitimately called judicial activism?

Building upon the foregoing case to make my point about democratic influence/public pressure over the Supreme Court, consider what later happened in the 2002 Senate race in New Jersey. Senator Toricelli, the incumbent, had secured the nomination for his party in the primary election. By state statute, once such a nomination had been formally decided, a party could later decide to change its nominee so long as it occurred no later than fifty-one days prior to the general election.^{^[10]} Senator Toricelli got some very negative press coverage about graft and corruption. The proof was sufficient to cause seven people to plead guilty to making illegal donations to Toricelli’s campaign and his formal reprimand by the U.S. Senate.^{^[11]} So bad was the press coverage about his conduct, that his party feared he could not win the general election so it tried to change its nomination to Frank Lautenberg thirty-six days before the general election.

The problem was that they didn’t do this before the last possible date set by the state statute for doing so. In clear contravention of the state statute, the New Jersey Supreme Court said that the change of candidates could still occur. An appeal by the opposing party to the U. S. Supreme Court ensued. Similar to the Florida Presidential election case, the Court had ample authority in the Constitution to step in and preserve the rules set forth by the New Jersey legislature against obvious encroachment by the New Jersey judiciary because Article 1, Section 4 of the U. S. Constitution provides:

“The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof....” (emphasis added)

Nevertheless, the U. S. Supreme Court declined to hear the case. Many people interpreted the reason for doing so as simply a desire to avoid all of the political controversy, and the likely diminution of its institutional image in the public’s mind, that would attend such a case as previously occurred in the Bush/Gore contest in Florida two years earlier. If this is correct, then we can see that the general political climate does have an effect on what the Supreme Court decides to do. It is very hesitant to do things that will imperil the general pubic trust and confidence in it.

For similar reasons, certainly the Supreme Court would not normally want to get involved in state political battles between the various branches of state government, but in both of the foregoing cases, elections to federal public office were at stake and the U. S. Constitution clearly gave the state legislatures the rule-making authority over such federal elections – not the state judiciaries. So in both those cases, the Court did have the authority to intervene to protect the state legislative rules from state judicial encroachment but only did so in the first case. Is it not reasonable to suspect that political calculations by the various Supreme Court Justices explain the different stances?

It seems over the years that religion and morality have effectively become marginalized in the political arena. Various political factions have sought very hard to demean and ridicule these things. As we write to the various politicians, we should indicate that these things are very important to us. They need to know that if they are perceived as being part of the problem in our nation’s moral slide, that they will pay the ultimate political price come election time. The moral majority needs to assert itself politically for if it insists upon staying silent, it will soon cease to be the majority.

Every religious person should make greater effort to be heard by his or her Congressman, Governor, Senators, and state legislators. Each of us should encourage our friends and acquaintances to do the same. Once people have educated themselves on the basics, personally composed, intelligent, and heart-felt letters of protest over the loss of our 10^th Amendment rights should flood Congress, our state houses, the White House and our Governors’ mansions, demanding a return of our democratic rights to local self-determination.

In trying to reclaim our 10^th Amendment rights to local democratic self-determination regarding all things not specifically delegated to the federal government, the politicians may respond that their hands are tied because of the Bill of Rights. If so, we should respond that only judicial misinterpretations of the 14^th Amendment starting about sixty years after its passage have caused people to believe this fallacy, and that we want political pressure to be brought to bear against the federal courts to return themselves to the intents of the framers of the 14^th Amendment and the views of the Supreme Court concerning that Amendment during the first few generations immediately following its adoption. After all, the justices who lived at the time of its adoption were in the best position to know what the intents were of those who drafted and adopted it.

In quick summary of a prior article on the topic of the 14^th Amendment, neither the framers of it nor the Supreme Court’s initial interpretations of it took an expansive view which would nullify federalism in general and nationalize all rights to the detriment of the states’ traditional police powers. These latter propositions only gained sway through inappropriate judicial activism about three generations after the 14^th Amendment’s passage, by a Supreme Court that had lost its institutional memory of those times. For example, when the Court, contrary to the intents of those who ratified the 14^th Amendment, later applied the 1^st Amendment against the states through the 14^th Amendment, the states lost their effective power to regulate pornography, etc. As it has done several times before, the Supreme Court can reverse its prior precedents which took us off the appropriate path if enough political pressure can be brought to bear against it.

As we all know, the Constitution provides for an impeachment process. However, since it requires a two-thirds affirmative vote in the Senate to convict, it has not been viewed to be a very effective checking mechanism. Jefferson observed that it is so difficult to achieve politically, that it is no more effective than a scarecrow^{^[12]} in a corn field in holding at bay those who are inclined to gobble up what shouldn’t be gobbled (i.e. corn in the one instance and power and authority in the other.)

Besides, because of America’s general ignorance of constitutional matters, it is doubtful that even a majority of the people could be convinced that the impeachment process is an appropriate corrective mechanism to check philosophical departures by the federal courts. Anyone attempting to use it for such would be falsely accused of politicizing the Court, attacking its judicial independence, and destroying our Constitutional form of government. Demagoguery would likely win the day in those arguments.

“The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”^{^[13]}

Changing the Constitution through judicial activism would certainly be a violation of the public trust since it encroaches upon the legislative authority. Federalist No. 81 specifically says that judicial encroachments upon legislative authority is grounds for impeachment,^{^[14]} but in view of general public ignorance of basic constitutional principles, I doubt that most people could be convinced that such should be an impeachable offence. Besides, today there aren’t even enough Senatorial votes to halt a filibuster of President Bush’s judicial nominations even at the appellate court level, let alone enough votes for any bold attempt to impeach sitting judges requiring an even higher voting standard for success. So the impeachment threat is really nothing more than a paper tiger.

Of course anything done by the Supreme Court, can be undone by a constitutional amendment. For example, this happened with the 11^th Amendment discussed in a later article. But it is extremely difficult to succeed at such a venture because two-thirds of Congress must agree, along with three-quarters of the states.

To some extent, every political institution is subject to political control. This article discussed traditional means of indirect and direct political control over the judiciary.

By virtue of his nominating powers regarding the federal judiciary, the President (with the consent of the Senate) can affect the long-term tone and philosophy of the judiciary -- particularly if he has some Supreme Court appointments during his presidency. Voters should consider this very carefully in deciding who they support in presidential elections and they should educate themselves on our constitutional history and philosophy in order to make informed choices.

If the political dialogue about the judiciary turned negative, it would probably affect what they do. If there was a massive public outcry to their elected officials about judicial activism, those public officials would start to speak up and the courts would likely listen.

In exercising our political voice, we should emphasize the need for public morality and virtue. Politicians should be ever mindful of the political price they will pay if they violate our public trust in this regard.

While the impeachment and amendment processes have been attempted in the past, they are too difficult to effectively achieve as a means of controlling the judiciary.

This article dealt primarily with very mild and traditional correctives. However, there are historical precedents for other types of political action in the nature of checking forces over judicial abuse. These will be explored in articles appearing in the next few days in Meridian Magazine.

[1] . R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court, Louisiana State University Press, (2001), p.157.

[2] . Thomas Jefferson, to Colonel Yancey, January 6, 1816.

[3] . Federalist No. 44, paragraph 18.

[4] . 42 U.S.C.A. Sec. 1988.

[5] . Phyllis Schlafly, ACLU finds pot of gold at the foot of the cross, June 21, 2004, Townhall.com: http://www.townhall.com/columnists/phyllisschlafly/ps20040621.shtml

[6] . Id.

[7] . Id.

[8] . Bush v. Gore, 531 U. S. 98 (12/12/2000.)

[9] . Examining The Vote: The Overview; Study of Disputed Florida Ballots Finds Justices Did Not Cast The Deciding Vote, New York Times, Nov. 12, 2001.

[10] . New Jersey Statutes, Title 19:13-20.

[11] . Desperate Dems fight to save a seat, Lancaster New Era, Oct. 3, 2002.

[12] .Letter from Thomas Jefferson to Charles Hammond, August 18, 1821, Works 7:216; reproduced at “www.constitution.org/tj/jeff15/txt”, pp.331-32.

[13] . Federalist No. 65, paragraph 2.

[14] . Id. No. 81, paragraph 9.