Fighting the Courts

Let’s pretend Terry Schiavo never existed. At some point, I’d be writing this whether Terry existed or not, died or not. Let’s instead use the case of Christopher Simmons.

To quote Bill Kristol

Thank God for our robed masters. If it weren’t for them, Christopher Simmons might soon be executed. In September 1993, seven months shy of his 18th birthday, Simmons decided it would be interesting to kill someone. He told his buddies they could get away with it because they were still minors. He broke into the house of Shirley Crook in Jefferson County, Missouri, bound her hands and feet, drove her to a bridge, covered her face with tape, and threw her into the Meramec River, where she drowned. He confessed to the crime, and was sentenced to death according to the laws of Missouri.

Last month the Supreme Court saved Simmons’s life. The citizens, legislators, and governor of Missouri (and those of 19 other states) had, it turned out, fallen grievously and unconstitutionally behind “the evolving standards of decency that mark a maturing society.” Five justices decided that the Constitution prevented anyone under the age of 18 from being sentenced to death. So Christopher Simmons will live.

Many of the same people who were outraged that Congress would intervene in a decision the courts had already weighed in on, will probably not like my suggestions, but again, let’s pretend Terry did not exist.

What do we do. First, let’s recognize that there is a difference between what we can do and what we will do. The obvious choice is to appoint conservative jurists to the courts who will actually decide on existing laws, not make up new laws and substitute their standards of decency for our own. I frankly doubt that any Republican in Washington will really do what should and can be done.

So, what can we do?

The first thing we can do is stop thinking of the courts as some holier than thou branch of government. They too are politicians. They just happen to be unelected politicians on the federal level. Once they get to the court and no longer feel beholden to political interests they tend to develop a “to heck with you” attitude, but they are politicians nonetheless. So, first we should abandon our ingrained reverence for the court system.

Second, in so recognizing the courts as made of politicians, we should also recognize the courts as a branch of government. Though some federal judges do not like it, the power of the purse is kept with the legislature, not the court system. I’m always fascinated by court decisions that order the legislature to spend money. They really have no power to do that — yet legislatures so often give in. Though the power of the purse was removed from the executive to prevent a dictatorial executive, we also need to recognize that the power of the purse must be kept from judges so they too do not become even greater dictators than they have already become.

Congress could, and should, cut the budget of the courts. Yes, it is not popular and we know lots of groups will cry about justice being denied for lack of funding. But it would send an extraordinary message to the courts — if they keep substituting their standards for our democratic standards, they will need to do so on their own dime and not the taxpayer’s dime.

Third, Congress should pick on a few judges and impeach them. Remind the judges that their tenure is only for a period of good behavior, not really for life. There are certainly federal judges out there that deserve impeachment. Congress, however, has relinquished its oversight role to the administrative wing of the federal judiciary. It is time to take it back.

Fourth, the Executive Branch, having waged a war of power with the Legislative Branch, should go on to war with the courts. The courts have, for some reason, gotten under some misguided notion that they are final arbiters and enforcers of laws. It is actually the Executive Branch that enforces the law and the Executive Branch should publically decline to enforce those decisions it disagrees with.

All of these notions might be repugnant to some. I venture to say, however, that the ideas are only repugnant when we continue to treat the third branch of government as greater than it is. After all, it is the third branch of government.

Think of that in larger terms. The founding fathers put the legislative branch first because power came from the people. The executive was the second branch because the people then needed someone to execute the actions of the legislature. The judiciary was not an afterthought, but it was certainly third in thinking.

The federal bench has become arrogant and increasingly views itself as the first branch of government — capable of passing and enforcing laws without the other two branched. The other two branches, through budget, appointment, impeachment, and ignoring the third branch, have powers that are not effectively being used against the third.

Republicans everywhere like to say they are for small government. Recent actions tend to dispute that. If Republicans are serious about being for small government, they should not just focus on reducing the budget of the government, but also on reducing the power of the federal judiciary — a power not given, but taken by judicial order.

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Erick Erickson

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1 Comment

  • 1. As an attorney and an employee of the federal judiciary, I’ve seen firsthand the arrogance and overreaching of the federal courts.

    2. Judges often don’t even purport to ground their actions in the text of the Constitution. When someone challenges a governmental action, judges rarely ask what should be their first question: where in the Constitution is the authority to do X delegated to the federal government?

    Using the “necessary and proper” clause, the courts might legitimately give a broad construction to the powers the Constitution expressly gives the federal government. But even under that standard, most of what the federal government does would be held unconstitutional.

    For instance, the Constitution nowhere authorizes the fed government to interfere in education or health care. If there’s such strong public support for the feds intervening in those areas, supporters have only one lawful option: amend the Constitution to authorize the feds to do so.

    3. I wholeheartedly agree that Congress should identify judges who have most egregiously overstepped their authority and impeach them. That’s the clearest lawful way to show judges that there are consequences for their usurpation of legislative and executive authority. We must impeach judges who rule according to their personal policy preferences rather than the text of the Constitution.

    Judges of both parties need to be reminded that there’s only one way to become a legislator: run for office and convince the people to elect you to the state legislature or to Congress.

    4. We should also enact legislation eliminating US District Court & US Court of Appeals jurisdiction over debateable policy issues where the judges have most abused their power to override public opinion. (Unlike these lower federal courts, the US Supreme Court is expressly guaranteed certain “original jurisdiction” by the Constitution.)

    Specifically, let’s get the federal courts out of certain “hot-button” issues and let the people of each State decide how to handle them, e.g., abortion, the death penalty (and its application to minors).

    5. Personally, I’d urge my state legislators and Governor to enact policies quite different than those imposed on us by the Supreme Court.

    For example, I want my State to apply the death penalty to people 15 and over who intentionally kill an innocent person.

    I’d also want my State to compromise on abortion by allowing it at most in the first trimester but banning it thereafter. In other words, IMHO the law should consider the unborn child a “person” no later than when it has a heartbeat, feels pain, and is developing basic consciousness.

    Other contributors to this blog surely have different positions on abortion, the death penalty, etc. And that’s the whole point. The citizens of each State must be free to debate and decide what policies best represent their understanding of individual rights and responsibilities.

    We can hardly do so if the federal courts decide these issues for us on the basis of concepts and language that are nowhere to be found in the Constitution.

    6. The only point on which I disagree is the federal judiciary’s budget. NO WAY should we cut the federal judiciary’s budget. The budget is already inadequate.

    Cutting the judiciary’s budget will cause long delays in the resolution of disputes that are legitimately before the fed courts — including “diversity” suits (between citizens of different states) involving claims for breach of contract, insurance coverage, medical malpractice, etc. Keeping our businesses productive, competitive and profitable turns in part on speedy judicial resolution of such disputes.

    The judiciary is one of the few legitimate, constitutionally authorized functions of the federal government. By all means, keep the federal judges in line by impeaching and restricting jurisdiction. But provide ample funding and staffing for them to do what they’re actually supposed to.