Time To Use Impeachment To Check The Unfettered Power Of The Judiciary.
“One single object . . . [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.” (Thomas Jefferson)
Well, well, well Supreme Court Chief Justice Roberts’ is a tad upset over President Trump calling to impeach the judge who blocked, or attempted to block, the deportation of more than 200 Tran de Auga gang members. According to Roberts “For more than two centuries it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
Roberts is wrong. Regardless of what he claims “has been established,” the fact is we need to impeach those who are activists in black ropes with life tenure masquerading as judges.
Checks and balances are what keep’s our Republic a Republic. Congress and the Executive branches are answerable to the people. Congress can constrain the President through the budget, overriding presidential vetoes, and impeachment. The President can constrain Congress by vetoing bills. Congress can constrain the Judiciary through budget constraints and impeachment.
It is true that Congress can do away with all federal courts except the Supreme Court.[1] However, without federal courts there would be no method of prosecuting those who violate federal law except to have the Supreme Court hear those cases, which is not realistic. Congress can also reduce the judiciary’s budget. But fiscally constraining the judiciary to the point where it cannot function is no better than doing away with the lower courts, so that’s not a realistic check either. The only meaningful check Congress has on the judicial branch is to remove federal judges through the impeachment process. And yes, Congress can remove judges when they make rulings that are counter to Congress’ interpretation of the law and the Constitution. In fact, Supreme Court Justice Chase was impeached, but not removed, in 1804 for making decisions Congress and President Jefferson disagreed with, specifically his aggressive enforcement of the unconstitutional Sedition Act of 1798.
Further, Robert’s statement that impeachment for making poor decisions is not appropriate because “[t]he normal appellate review process exists for that purpose” is absurd. The only way one can make that statement is to base it on the argument that Congress cannot, or should not, remove incompetent or activists judges who either don’t understand or don’t care what the law is because their errors will be corrected on appeal. Nonsense. Merely because an erroneous court decision can be appealed does not mean it will be corrected and certainly does not mean Congress should not remove the judge for being stupid.
Think I’m crazy? Just off the top of my head I count 17 Supreme Court holdings that were contrary to the Constitution.[2] I’m sure there are many more, I just got tired of counting. Further, more-often-than-not, it takes years from the time a case is filed in the district court to obtaining an appellate court ruling. Additionally, since the Supreme Court has discretion in deciding which cases it accepts, there is no guarantee it will take the case, in which event the appeal ends at the appellate level. Even if the Supreme Court takes the case, there is no guarantee they will get it right – see footnote 1.
By ignoring the law and/or the Constitution – out of ignorance or due to intent – a single judge can prevent a President from implementing policies he’s authorized by law to implement for his entire term. So no, “[t]he normal appellate review process” is not an adequate check on the abuse of power by judges. The only real check on judicial abuse of power is Congress’ impeachment authority. However, in the history of the U.S. there have only been 15 judges impeached by the House and only 8 removed by the Senate.
Given there are currently 1,457 federal judges, and God only knows how many total in our history, impeaching 15 and removing 8 since 1789 is anything but checking judicial power. Congress’ abdication of its responsibility to check judicial power through impeachment is the reason we have an out-of-control federal judiciary today.
The answer to reining in activist judges is not to continue the status quo in the hopes they will see the error of their ways. Instead it is for congress to use its impeachment power to remove those judges who prefer to be activists instead of following the law and the Constitution.
As it stands now, we have unelected lawyers, selected by the President, who when confirmed by a simple majority of the Senate – without the input of the House of Representatives – are elevated to the exalted status of federal judges with life tenure who have unfettered power. As a result, too many judges feel free to unconstitutionally substitute their judgement and policy preferences for those of the President and Congress.
When you think about it, the system we have at the moment looks more like an oligarchy or maybe rule by a secular priest caste instead of a Democratic Republic.
[1] U.S. Constitution, Article I, Sec. 8, Cl. 9
[2] Dred Scott v. Stanford (1856) – Blacks could not be citizens if as freemen; Slaughterhouse Cases (1872) – the 14th Amendment did not extend fundamental rights protected by the Bill of Rights to the states; Civil Rights Cases of 1883 (1883) – overturned the Civil Rights Act of 1875 on the grounds the 13th and 14th Amendments did not allow Congress to prohibit discrimination in the private sector; Pace v. Alabama (1883) – prohibiting intimate relationships between races was not unconstitutional; Elk v. Wilkins (1884) birthright citizenship does not extend to Native Americans; Plessy v. Ferguson (1896) – separate but equal is constitutional; Schenck v. United States (1919) – upheld the Sedition Act of 1918; Lochner v. New York (1905) – invented the right of “liberty to contract”; Buck v. Bell (1927) – holding that forced sterilization of intellectually challenged people was constitutional; Korematsu v. United States (1944) – internment of Japanese-Americans was constitutional; Furman v. Georgia (1972)- death penalty is unconstitutional even though it is expressly authorized by the 5th Amendment; Bowers v. Hardwick (1986) – upheld anti-sodomy laws; Roe v. Wade (1973) finding abortion was a right guaranteed by the Constitution; Wickard v. Filburn (1942) – found the commerce clause allowed the government to regulate how much wheat a person could grow for personal consumption, resulted in the runaway commerce clause; Planned Parenthood v. Casey (1992 – conceded Roe v. Wade was not grounded in the Constitution, but upheld it anyway; Gonzales v. Raich (2005)- federal government can criminalize the growing of marijuana in a state even if it is not sold under the commerce clause; Kelo v. City of New London (2005) – made a mockery of the tacking clause; Citizens United v. FEC (2010) – money is speech and unlimited amounts can be donated to superPACs in campaigns.