The federal judiciary has amassed unprecedented power. The courts have used their authority to void legislative acts by declaring them unconstitutional in ways that were not intended by the authors of the Constitution. The result is a judiciary that now controls a large part of our lives by fiat. That control must end.
As detailed in last week’s “Right As Always,” the federal judiciary wields enormous influence in the political arena. It weighs in on abortion, euthanasia, the death penalty, affirmative action, gay marriage and other pressing social issues. It has also sought to control national security issues, such as the treatment of enemy combatants and the military powers of the president.
The problem is that the courts are increasingly taking over the governance of the United States while simultaneously remaining unaccountable to the people at large. An unelected oligarchy of law school graduates is undercutting our duly elected representatives by vetoing the laws passed in the legislature or simply by writing their own laws.
Normally, when people are unhappy with the laws passed by a legislature, they kick the bums who wrote the bad laws out of office and put new bums in their place. But judges are not elected. They are appointed. Also, they are appointed for life.
Thus, the only recourse to bad judges is to change the Constitution or wait for them to retire, and replace them with better judges. The first option has been used quite frequently in the gay marriage case, with 11 states enacting anti-gay-marriage amendments last election cycle alone.
But this option is often a long and difficult process, sometimes taking years to complete. Even then, there is a possibility that a rouge judge may declare a constitutional amendment unconstitutional. This is entirely possible, fidelity to the constitution apparently not being a qualification for judgeship.
Assigning new j udges is also quite difficult, as the quagmire in the U.S. Senate has shown. A minority, the Democrats in this case, are capable of holding up the nomination process and preventing constructionist judges from reaching the bench.
This opposition is inevitable, due to the politicization of the courts. Some group is bound to benefit from activist judges, and that group will not easily give up their source of power, especially if it is the only power which they possess. The Democrats are such a group, and thus they are filibustering any nominees they think will not represent their interests in the courts.
So what is the solution for reigning in activist judges? Mark Levine, author of “Men in Black,” proposes two interesting solutions, both as amendments to the Constitution. The first idea is giving Congress a veto power over Supreme Court decisions, requiring a two-thirds majority in each chamber. The second is creating term limits of 12 years for Supreme Court judges.
The first suggestion I find to be impractical for the same reason as the nomination process. Minority obstructionism would prevent a two-thirds majority from forming, except in the most outrageous of cases. Plus, a judge or group of judges who could manage to outrage 66 percent of all politicians would be unlikely to be confirmed in the first place.
The second suggestion of term limits is one that has much more promise. One of the primary methods that the founding fathers established to control politicians was frequent elections. Legislators are kept honest by the idea that they have to face their constituents at some point and explain their actions.
If judges are going to act like politicians and enact laws contrary to the Constitution, they need to be subjected to the same controls as politicians. While directly electing judges is impractical and unwise, forcing them to justify their re-nomination every 12 years will likely cut down on the feeling of invincibility which no doubt fuels many of the worst excesses of judicial activism.
It is important that we, the people, take back control of our country from the judges. A good place to start would be forcing judges to answer for their behavior, to paraphrase Tom DeLay. And the question they will have to answer will be, “Do you want to keep being a judge?”
Sean Paroski, whose column appears every Thursday, is a senior applied mathematics major.