America Needs Restoration of Judicial Checks and Balances

Congress can and should take the following actions to resolve these problems:

1. Impeach and hold trials on the rogue judges undermining the Constitution
2. Cut the funding for judicial officers and courts that openly defy constitutional norms
3. Restrict the power of federal courts to issue nationwide injunctions or decide the merits of certain cases.
4. Require bonds for injunctions. The Wall Street Journal recently affirmed the utility of this reform to control out-of-control judges.

But there remains a larger problem. Who defines what is constitutional? Who decides what is constitutional? How do we restore proper checks and balances for the judiciary within our Republic?

If we follow the Founders’ minds on this, the answer starts with the other branches and We the People. Presidents must veto unconstitutional bills. Legislators, who swear an oath to uphold and defend the Constitution, must resist any bills that go against our nation’s charter.

We get all that.

However, what about when a dispute emerges between laws and the meaning of the Constitution? Should politicians just ignore judges who make rulings we don’t like? Allow people to do as they please? Wouldn’t such a scenario harm the rule of law just as much as judicial tyranny? If Presidents or other executives decide not to listen to judicial authorities, would those officers lose their integrity, and the offices lose their legitimacy?

The Founders contended with judicial activism fairly early, and not effectively. Post-Election 1800, the dying Federalist Party maintained its last chokehold on political power via similar judicial maneuvering. When one of Adams’ appointees demanded his judicial commission, Marbury v Madison was born. This decision cunningly established judicial review as Chief Justice (and Federalist) John Marshall struck down a law by denying the Supreme Court the power to issue a writ of mandamus for former President John Adams’ midnight judicial appointments.

Sure, President Jefferson won the battle, but he slowly witnessed the country—and the Constitution—lose the war. After his presidency, Jefferson mused:

“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.” (Letter to Thomas Ritchie, Dec. 25, 1820)

Our third president outlined the problem: judges are unaccountable. Where are the checks and balances besides the impeachment power? There are appellate remedies, but what about disciplining rogue federal judges when their rulings flout the letter and spirit of the law?

The good news is that President Trump’s DOJ is now arresting judges for flouting the law. It’s about damn time. Perp walks are essential, as Scott Jennings asserted, because the Trump administration must send a message that Trump 2.0 is not putting up with the relentless lawlessness this time. No one is above the law, including judges.

Those instances involve illegal actions. What about rogue rulings? Should we set up final arbitration for contentious issues? The Constitution is a fixed document, even if Justice is not a neat and tidy process. A court of law to settle disputes is much better than vigilante justice and the War of All against All. Let’s not forget that federal courts have struck down unconstitutional attacks on the Constitution, too.

What do we do about judges who consistently issue unconstitutional rulings? Should federal judges serve for a limited term, subject to election? One may object, saying that justice should not be determined by the drawing of a ballot. The insistence on an independent judiciary is a sacred feature of the Anglo-American legal tradition. 

But independence cannot turn into arrogance. Judges could be forced to resign at 75 or 80 years old, just as Catholic cardinals are expected to turn in their resignations when they reach a certain age. However, a bad judge pushed out at 80 still leaves a long trail of bad rulings.

We need immediate accountability, and impeachment won’t work, since a supermajority is near impossible to attain in the United States Senate. Presidents and Congress need to start acting like the independent branches that they are. Judges serve an advisory role, and they settle disputes between parties. If there are questions or conflicts in law, they can rule in one such manner, but then they must defer to the legislative branches.

Perhaps if courts make a rule challenging the Constitution, Congress can vote by majority to override or disallow the ruling. If the court makes a just ruling, and Congress still undermines the ruling, then the people can vote out their representatives.

It’s time to restore accountability to the people. The states and the people must intervene, as well, when the courts are out of line. President Trump should consider taking a stand against rogue federal courts and just enforce the laws of the land anyway. President Andrew Jackson followed this line of attack, even if the decision resulted in the deportation of law-abiding Indian landowners from their property. President Trump is continuing to send violent illegal aliens out of the country, despite the perverse rulings of one rogue federal judge!

Beyond accountability for the judges, there must be accountability from the people. How many university students know the three branches of the federal government? How many understand natural law and the Common Law bases of our Anglo-American legal traditions? Constitutional principles must be defended by the people in education and in citizenship participation.

This contentious matter of judicial restoration won’t be easy, but at least some of these ideas could establish a workable framework for the future. This is the way forward!