Is It Time To Rein In The Judiciary?

Ninth Circuit in California rules the Pledge unconstitutional. The US Supreme Court sets aside the 15th Amendment while making a ruling. In Nevada the State Supreme Court ordered the legislature to act in contravention of the State Constitution.

They all raise the question of whether or not the judiciary is beginning to overstep its bounds. The Washington Times has a good commentary which makes just that argument and is well supported with examples.

Now I'll agree that the courts are becoming a bit too big for their britches. As the Nevada Supreme Court decision and the O'Connor opinion show, the courts are starting to seriously deviate from their Constitutional mandate. The judges are there to interpret and defend the Constitution - whether it be the State Constitution for a State Supreme Court or the US Constitution for the US Supreme Court. The justices cannot decide to set apart any portion of those documents because they're inconvenient to the wishes of the Court.

I have serious problems with things like O'Connor putting aside the 15th Amendment claiming a "compelling state interest." The only way that there could be a true "compelling state interest" is if the Congress or a Constitutional Convention were to pass an Amendment repealing the 15th Amendment or setting it aside in a specific instance. There is nothing that gives O'Connor the right, obligation or authority to set it aside because it doesn't suit her goal in writing a decision. The people are the state (remember the "government of the people, by the people, and for the people" line?). If the people have a compelling interest in changing the Constitution, they'll do so.

But I also have a problem with the author's argument against the Florida Supreme Court.

The Florida Supreme Court was wrong (great surprise there). A minor should not have the right to an abortion without parental consent.

The author argues that the court threw out a law requiring parents to be notified "despite overwhelming public support for such a common-sense provision."

I say that's good. I don't want the court system judging laws based on their popular appeal. I want them judging the laws based on their legality. Is the law a governmental overstep that is counter to the Constitution? That is the question that the Supreme Courts should be answering in constitutionality courses.

The author would have been much better off if he had argued that the law should have passed muster because a minor, by definition, is incapable of making decisions like getting an abortion (we're not talking about their actual decision making capacity, just the legal decision making one). It wasn't a question of popular opinion; it was a question of the legal definition of a minor. And the Florida Supreme Court blew it.

So how can we bring the judicial tyrants back into the fold? We actually have two choices, both of which are potentially dangerous. The first is to have Congress start invoking the exceptions clause. The second is for the President to refuse to heed the court.

Our government was set up around a system of checks and balances to ensure that no one branch of government got too powerful. It was easy to create the checks for the legislative and executive branches, but for the judiciary it is a bit tougher. To check the unbridled power of the judiciary requires that the other two branches of government selectively ignore it. It requires that the executive and legislative branches voluntarily police themselves for Constitutional compliance. It has happened before, but it is a dangerous precedent, and would have particular dangers in today's world of extremely powerful special interest groups.

Invoking the exceptions clause would deny the Supreme Court the ability to pass judgment on certain pieces of legislation or on certain executive enforcement actions. Now it seems like a nice and easy way to end judicial activism in any number of areas. No more attacks on the Pledge; no more interference in electoral matters. But again, as with many issues like this, where do we stop?

OK so we stop the attacks on the Pledge. How long before someone decides to "expand" the definition of the exception to include any attack on the establishment clause? And it can happen, especially on a hot button topic like religion. Just look at how the establishment clause has morphed into the no-religion-whatsoever-in-public-office clause.

The other alternative is to have the executive branch ignore the court's decision that certain laws are ok. Jefferson did it; so did Lincoln. So why don't we really want Bush to do it?

It's a big step - one that should only be undertaken in extreme circumstances. There has to be something incredibly egregious about a law before the executive branch deliberately refuses to enforce it. The problem comes in with where do you define "extreme?"

Was Dred Scott extreme? Lincoln thought so. Is Lawrence v. Texas extreme? Not in a Dred Scott or Alien and Sedition sort of way. Bush could win brownie points among the far right if he were to ignore the ruling - might even help his reelection bid. But Lawrence is not extreme enough, not reprehensible enough, to justify "executive nullification." If Lawrence were to be nullified, where does the line get drawn? Does the executive branch start to nullify whatever it wants?

And therein lies the problem with containing the judiciary. Invoking either the exceptions clause or using executive nullification requires that both Congress and the President be absolutely scrupulous about adhering to the Constitution without the third check. But then that opens the door to the special interest groups.

The special interest groups don't care about the Constitution or the rights of others, they care only about their topic. The judiciary, being appointed and not elected, is really the one bulwark against the abuses of the extremist special interest groups.

Invoke exceptions or nullification and every interest group that can print letterhead and send spam will be screaming about how their concern is "special" and how this piece of legislation that they're proposing to rectify the problem that only they can see should be protected from the whims of that great evil judiciary.

We could, of course, try to find a way to remove the offending justices by way of a recall, but then we threaten the independence of the judiciary. The whole idea of appointments is that we don't want the judges to be beholden to the voters. They shouldn't have to campaign. They should be able to make tough and unpopular, even inflammatory, decisions without fear of backlash - assuming the decision is based in the Constitution.

We're at an interesting crossroads in our history. The judiciary is beginning to abuse its power and position, but the question of how we check them is an interesting one. Do we attempt to go the recall route? Or do we risk the republic to rein them in? Recalls are a safer route, but they are unlikely to succeed. We can risk the republic and use exceptions and nullification, but are we ready for the unintended consequences?

I don't think we're at the point of risking it all to stop the activists. I'd rather see us focus on taking out one through recall and maybe reminding the rest who they work for.

It's not the government. They work for the people.