JUDGES
Limit the Supreme Court’s judicial-review power, which far exceeds the Framers’ intent, by establishing a legislative veto over Court decisions – perhaps a two-thirds supermajority of both houses of Congress, not dissimilar from the congressional override authority of a presidential veto.
It is an interesting thought. Under our three branches of government there exist a number of mechanisms for the different branches to act as a check against the other two branches. The legislative branch can thwart some actions of the executive branch, and the executive branch can obviously check the power of the legislative branch by exercising its veto power. But there is absolutely no check on the judicial branch, and it shows. The founding fathers never intended for the judiciary to be so all powerful.
Let’s take a look at how the three branches of government can act as a check on each other. It is important to note that there are essentially two ways that one branch of government can provide a check on abuses of power by the other two branches, blocking actions and responsive actions. Clearly the blocking actions provide a more immediate and effective check on power than the responsive actions.
Checks on the executive branch
The legislative branch can provide an immediate blocking check on the power of the executive branch in three ways. They can override a Presidential veto if they muster a two-thirds majority, and the Senate can reject Presidential nominees to the cabinet and Supreme Court as well as reject treaties signed by the President. Additionally, the legislative branch can respond to serious abuses of power by the President by impeaching (the House) and removing (the Senate) a President, though certainly without the same immediacy as the blocking checks previously described.
It is worth noting that congressional overrides of Presidential vetoes are fairly rare. The Congressional Research Service reported that “Prior to 1969, Congress overrode approximately 1 of every 18 (5.7%) regular vetoes. Since 1969, Congress has been more successful, overriding about 1 out of every 5 (18.3%) regular vetoes”.
The judicial branch can act as a check on the executive branch by overturning laws, actions, and regulations signed or implemented by the President. All of these are immediate blocking actions.
Checks on the legislative branch
There are essentially two methods that the executive branch can utilize to check the powers of the legislative branch, both of which are the more immediate blocking type of actions. The President can veto legislation passed by Congress, though I would argue that Presidents do not exercise this power enough. Additionally, although rare, the Vice-President can act as the tie-breaking vote in the Senate which was most recently exercised by Vice President Dick Cheney who did so 8 times.
The judicial branch can block actions of the legislative branch in much the same way that it can check the power of the executive branch by overturning laws passed by Congress.
Checks on the judicial branch
The legislative branch can check the power of the judicial branch, but only in a responsive fashion, in contrast to the more immediate blocking actions that act as checks on the power of the other legislative and executive branches. Congress can impeach a Supreme Court justice, but the only case in history where this action has been taken was against Samuel Chase who was subsequently acquitted by the Senate and remained on the court. Additionally, Congress can propose amendments that once passed cannot be overridden by the high court. Both of these checks on the power of the judicial branch are responsive actions that cannot truly check the actions of the court in the same way that the actions of the other two branches can be thwarted.
The executive branch has no power to check the actions of the legislative branch. Some would argue that the President’s role in appointing Supreme Court justices constitutes such power, but the dismal results of nominees like Souter and Kennedy completely undercut that position. Once a justice is in place, it takes egregious conduct to warrant removal. Oddly, history shows that simply ignoring the Constitution does not seem to justify that removal.
Speculation about the historical results of a Congressional override power
I must admit that I was initially opposed to Levin’s suggested constitutional change to implement a congressional override of Supreme Court decisions. However, after taking a deeper look at the lopsided checks on power among the three branches, I immediately changed my mind. This discussion would not be complete, however, without taking a cursory look at some controversial historic Supreme Court decisions and making some informed speculations as to how Congress would have voted if they had possessed this proposed override power. In many cases it is very difficult to determine how Congress would vote in such an override vote, but one can draw some conclusions with respect to civil rights cases because the Democrat Party was clearly the party of racism up until the late 60s at which point it morphed into the party of race hustlers.
In 1856 the Supreme Court ruled 7-2 in Dred Scott v Sanford that a slave who had lived in the northern free state of Illinois and the free territory of Wisconsin could not sue to secure his freedom from slavery in Missouri. Because Democrats held the house and more than a third of the Senate at that time, this decision could not have been reversed by Congress using Levin’s suggested supermajority override power.
In 1896 the Supreme Court ruled 7-1 in Plessy v. Ferguson that segregation was legal if the segregated facilities were equal. Although the GOP did have a supermajority of the House, the almost evenly split Senate would have prevented the needed reversal of this horrendous decision.
In 1954 the Supreme Court finally came to its senses and ruled 9-0 in Brown v. Board of Education that separate-but-equal was not acceptable. Though the racist Democrats would have supported an override, the GOP held both houses and would have prevented a Democrat attempt to maintain their preferred racist society.
Let’s move past genuine civil rights into a case that is falsely called a civil rights case, the hallmark decision in 1973 that forced legalized abortion on the states. In 1973 the Supreme Court ruled 7-2 that the states could not make their own laws with respect to the legality of abortion. Given that the Democrats had majorities in both houses of Congress, it is unthinkable that the required supermajority could have been assembled by the GOP.
Finally, let’s examine an egregious Supreme Court decision that would have been overturned by Congress. In 2005 the liberal bloc plus the fickle Anthony Kennedy ruled 5-4 in Kelo v New London that New London, CT, could seize private property for the sole purpose of developing waterfront property in order to increase their tax revenues. Though the GOP held only slight majorities in both houses, the outrage at the decision was universally criticized with even socialist Bernie Sanders (whose ideology requires the implicit acceptance that government owns its subjects) criticizing the decision. In fact, the New York Times reported that “House members voted 365 to 33 late Thursday night in support of a resolution expressing ‘grave disapproval’ at the court decision.”
One other case near and dear to my heart is the 2008 decision in District of Columbia v. Heller which ruled 5-4 that the Second Amendment indeed protects an individual right to keep and bear firearms. Though the decision was anathema to Democrats, they could not have assembled the two-thirds supermajority that would be required to overturn the decision under Levin’s proposed change.
In summary, though Mark Levin’s proposed supermajority override power could be effective in some of the most obviously bad decisions of the modern era, it would likely not be successfully abused with any real regularity.
Eliminate lifetime tenure for federal judges, given the extra-constitutional power they have amassed and their routine intervention in the political and policy decisions – which the Constitution leaves to the representative branches.
The judicial branch has a disproportionate share of the power in America, and too many judges have proven that they are not up to exercising that power with restraint or responsibility. Examples of judges like Kennedy or Souter, who pretend to be one thing and then swing to the “living document” side of things once they get offended because they are not part of the D.C. cocktail circuit, make a strong argument that judges’ tenure should be limited to one well-defined term. The founding fathers never intended to have judges be kings.
Article 3, Section 8 of the Constitution fairly clearly allows for lifetime appointments of judges when it states that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior”, but it is not unreasonable to ask why we have imposed term limits on the Presidency but have not done so with congress or the judiciary. Though Congress is not constrained by term limits, there are checks and balances provided by the other two branches as described above. But with no check on their abuse of power, the one branch that really needs to be subjected to term limits is the judiciary. Once appointed, they are veritable American royalty for life, unanswerable to anyone for anything that they do. They simply have too much power over the lives of all Americans to let them stay in that position for life. Mark Levin is right.
No judicial nominee should be confirmed who rejects the jurisprudence of originalism.
What is originalism? There is a lot of propaganda associated with different views of what the term means, but the clearest definition would be that adherents to the philosophy of originalism believe that the words of the Constitution mean something and that those words should be what guides the decisions that they make. The other side of the coin would be the so called Living Document crowd who believe that the Constitution means whatever they want it to mean. It is important to point out that while the Constitution is not unchanging or unmalleable, the only proper (and constitutional) method of changing its meaning is the legal amendment process which has been used seventeen times since the passage of the Bill of Rights. However, given that the amendment process is intentionally slow and difficult to those who seek to engineer every aspect of our lives, the egregiously dishonest and sinister living document concept has been foisted upon a public that is largely ignorant of the U.S. Constitution.
It is quite illuminating that the section titled “Arguments opposing originalism” in the Wikipedia entry on originalism has as its first point “Originalism leads to unacceptable results.” That hits the nail right on the head and is the key problem with the judiciary in America. Contrary to the wishes of the social engineers who seek to control every aspect of our lives, the constitution is not meant to right all wrongs or always produce the desired results. Instead, it is intended to severely limit the powers of the federal government, a concept completely rejected by the Left in America. In fact, the mark of a great and honest judge is in making decisions that are personally unpalatable if that is what is constitutionally correct. A judge’s opinion on a particular subject should be irrelevant because they should only compare the case to the text of the Constitution.
The fact is that the federal courts do not acknowledge any limits to their power, refusing to accept their proper role as one branch of government. We recently had a national discussion centered around an unqualified Supreme Court nominee’s statement that a “wise latina” would make better decisions than a white man, when in fact they should both be reading the same text and making decisions based upon that and only that, leaving their own ideologies at the door. Some Supreme Court justices, most notably the mercurial and intellectually dishonest Anthony Kennedy, have even suggested that judges should look to foreign laws when deciding a case. Someone who thinks like that should never be considered qualified to sit on an appellate court, much less the highest court in the land.
A classic example of judicial tyranny is the case of Roe v. Wade. In that case the majority not only substituted their own ideologies for what is constitutionally correct, they also completely stepped over the line separating them from the legislative branch. In that historic case they should have simply either upheld the Texas law or overturned it, but they in fact took on the powers of the legislative branch when they wrote new law in that egregiously dishonest and unconstitutional decision. Writing law, as they did in that decision, not only goes beyond their legitimate powers but in fact usurps the proper role of the legislative branch. If they decided to overturn the Texas law they should have simply struck it down and let them go back to the drawing board. Instead, Justice Blackmun assumed the role of a dictatorial member of congress writing new laws to be forced on Americans. Most people are stunned to find that the “law of the land” when it comes to abortion was written by one judge on the Supreme Court.
The changes proposed by by Mark Levin in the third plank of his Conservative Manifesto would obviously require a constitutional amendment and should be approached very thoughtfully. However, the uncontrolled power of the judiciary and their demonstrable lack of restraint are a danger to the critical American constitutional balance of powers. These suggested modifications would be a net positive for states’ rights and for individual freedoms though judges and statists will likely disagree. This is yet another great idea from Mark Levin.
