Having tired of hearing all of the mindless blathering about “judicial activism”, the right wing catchphrase that means “judges refusing to allow us to do whatever we want to other people”, I hereby propose a new phrase: legislative activism. In response to unpopular court opinions, particularly the Lawrence decision that overturned state sodomy laws and the Massachusetts decision instituting gay marriage, we are witnessing an all out assault on the idea of an independent judiciary. There are now six separate bills in Congress that would strip the courts of their jurisdiction to hear certain types of cases, and the religious right, basking in what they view as the glory of their victory in the Presidential election, want to reach for even more. Look at this report by George McEvoy on a meeting between key legislators and the Christian Coalition:
Reportedly, such leaders as the Rev. Jerry Falwell and Republican Rep. John Hostettler of Indiana, flush with what they see as a successful right-wing revolution, believe they can make the federal courts virtually powerless.
Rep. Hostettler, addressing a special legislative briefing of the Christian Coalition last month in Washington, reportedly talked at length about a bill he plans to introduce. It would deny federal courts the right to hear cases challenging the Defense of Marriage Act, which bans same-sex marriage.
“Congress controls the federal judiciary,” Rep. Hostettler was quoted as saying. “If Congress wants to, it can refer all cases to the state courts. Congress can say the federal courts have limited power to enforce their decision.”
Apparently, the Hoosier congressman has not heard of the balance of power among the three arms of our government. He was quoted as telling the Christian Coalition members:
“When the courts make unconstitutional decisions, we should not enforce them. Federal courts have no army or navy… The court can opine, decide, talk about, sing, whatever it wants to do. We’re not saying they can’t do that. At the end of the day, we’re saying the court can’t enforce its opinions.”
Another congressman, Alabama Republican Robert Aderholdt, was quoted as advocating court stripping as a means to protect state-sponsored Ten Commandment displays, such as the one erected by former Alabama Supreme Court Chief Justice Roy Moore.
And then there was Sheila Cole, executive director of the Republican Study Committee, a group of ultra-conservative House members. She said federal judges who refuse to listen to Congress might well be impeached.
This is an extraordinarily dangerous idea. With all of the talk of “judicial activism” and how it “thwarts the will of the people”, why does no one ever speak of legislative activism thwarting the intent of the Constitution? I submit that the latter is far more dangerous than the second, and history bears that out. Madison spoke often of the tyranny of the majority, and indeed it must be said that in a nation where political power lies in the ability of a majority to elect representatives that will vote their interests and goals, the limitations on the power of government found in the Bill of Rights are, by definition, limitations upon the power of majorities to impose their will on others. The courts, having the authority to enforce the limitations found in the Bill of Rights, are our last and strongest bulwark against the very sort of governmental overreach that the founders sought to avoid.
Additionally, as I and many others have noted before, the idea that Congress can strip the courts of jurisdiction whenever they feel like it is constitutionally dubious at best. Jason Kuznicki has addressed this question, as have Timothy Sandefur and Sasha Volokh. Sandefur points out that, at the very least, Congress cannot strip the Supreme Court of their original jurisdiction found in the Constitution, which means any case to which a state is a party. There are only two minor cases in American history, neither of them answering the central question of when and how Congress may make exceptions to judicial review.
So what happens if Congress passes a law stripping the courts of jurisdiction in some type of cases and the Supreme Court overturns that legislation as unconstitutional? Well, then we have a constitutional crisis on our hands. And all so the religious right can score some points with their halfwit followers by standing up to those Godless pagan judges. In earlier times, I might have said that this is overblown, that cooler heads will prevail. But these days, watching the religious right’s eager and voracious grab for power, what was previously unthinkable is now quite possible. They will stop at nothing to get their way, it seems, and the Constitution be damned. Americans United sum it up nicely:
These misguided and dangerous court-stripping bills are of dubious constitutionality, raising serious concerns about the violation of separation-of-powers, equal protection and due process principles. By threatening to eviscerate the courts, these bills are also bad policy–they undermine public confidence in the federal courts by expressing hostility toward them, threaten the legitimacy of future congressional action by removing the federal courts as a neutral arbiter, and reject the unifying function of the federal judiciary by denying federal courts the opportunity to interpret the law. These bills are an attack on our very system of government, and must be opposed.
Spot on. This is an extraordinarily dangerous time in American history, folks, and these legislative activists must be stopped before we have a full blown constitutional crisis on our hands.