The New York Times reports that Republican candidates for the presidency want to eliminate certain cases from the court's docket (like same-sex marriage), impose term limits for judges, give Congress the power to overrule the Supreme Court, abolish the Ninth Circuit Court of Appeals and cut judicial budgets -- all this in the name of ending "judicial activism". Judicial activism is in the eye of the beholder. In reality, it simply means a decision with which one does not agree. I seriously doubt that the Supreme Court's decisions regarding corporate moneys in elections, individual gun rights or the outcome of the Bush/Gore election are examples the candidates would cite of judicial activism.
The greatest single guarantee of judicial independence is life tenure. Proponents of term limits are not without justifiable support, but it is difficult to see how term limits would eliminate the much feared and reviled "judicial activism". It would replace judges both with whom we agree and disagree. The Republicans keep insisting that judges must be held accountable; that somehow public opinion should influence outcomes. Nothing could be more inaccurate or contrary to constitutional principles, and nothing could be more dangerous than having Congress become a Super-Supreme Court as some have proposed.
Newt Gingrich claims that "judicial supremacy" is factually and morally wrong and "an affront to the American system of self-government". Since Marbury v. Madison in 1803, the law of the land has been that the courts determine what is or is not constitutional. If not the courts, who else? Can you imagine leaving those critical decisions to Congress -- like this Congress! And remember, it is these same Republicans who require judicial nominees to take a blood oath that they will follow precedent! Apparently Marbury is not on Mr. Gingrich's list. Mr. Gingrich also suggests that if we cannot rid ourselves of these liberal judges, we should either punish them or extort their compliance by cutting their funds -- your democracy at work. He suggests shutting their electricity so that they cannot function. Now there is a platform plank for a presidential candidate that should inspire us all.
Among the most ridiculous suggestions, Rick Santorum recommends abolishing an entire circuit court (the 9th) because he disagrees with its rulings. If disagreeing with how a branch of the government was conducting itself were the criteria, we would certainly abolish Congress. Removing judges or entire circuits because some or even a majority do not like or agree with their decisions violates the Constitution and the separation of powers. We cannot have a country in which the president or Congress can overrule the unpopular decisions of the judiciary or fire the judges who render them.
Court decisions need not be and frequently are not popular. Many would be disapproved by the public if submitted to a vote. Decisions conferring rights on criminal defendants are often unpopular. Integration of schools might not have passed a plebiscite. Courts are not the same as American Idol. The public does not vote on decisions. One of the roles of the Constitution, and in turn the courts, is to protect the minority from the oppression of the majority. The judicial branch is the last bastion of freedom in this country. The repeated attempts to politicize it demean it in the eyes of the public.
Under its current construciton the Supreme Court is omnipotent. To paraphrase one of FDR's appointees, The Constitution says what we say it says. The 17th amendment is partially to blame, as justices are confirmed without regard to maintaining the States' sovereignty.
An amendment allowing for Congress to overthrow a SCOTUS decision with a 3/4 majority in both houses, or some variation thereof, could be considered.
Your definition of judicial activism is far too broad. I uderstand it to mean finding in the Constitution that which is not there, or attributing intent that never existed. These 2 things, along with the omnipotence of the SCOTUS, have essentially made the Constitution an interesting anachronism.
Once upon a time, I used to think, WTH, let them screw it up and come crying for help.
But that's not what happens - what happens if that they screw it up and blame it on Democratic witchcraft. You know, like evolution is "a theory that's out there."
These people in politics are the sort of morons who think their car is broken when it runs out of gas.
Although the suggestion is probably ridiculous from a practical point of view, it is clearly not unconconstitutional. There is no constitutional right to have X amount of lower or inferior courts i.e. there is nothing magical or constitutional about having 13 courts of appeal. Congress could decide to have 50 such courts or 5 or even none. As a practical matter they probably wouldn't reduce them because of the case loads involved. However, the only thing Congress can't remove by statute is the Supreme Court itself (the Constitution mandates a Supreme Court) and the judges. The judges themselves have, via the constitution, lifetime tenure unless impeached. But Santorum wasn't talking about removing the judges only the circuit.
Eliminating a circuit certainly wouldn't violate the seperation of powers (unless you think the judiciary should have absolute power) and would provide a gentle slap on the wrist that would fall short of the more draconian steps of eliminating judicial review or lifetime tenure.
But if I wanted to reduce the influence of the 9th circuit, I'd split it in 2 and try to pack it.
I think it would be hilarious if Obama agreed with Santorum, and did exactly that! Then you'd have 2 circuits full of judges who begin each paragraph with, "but on the other hand...", LOL!
The events of the last 3 years have proven to me that America's real enemies are from within. The people and groups who we should be watching and in some cases fighting are the very people elected to office. They have sold whatever power and influence they have to wealthy individuals and groups. This is true of both parties and until the influence of private money, special interests and lobbyists are removed from our political system it will not change.
OWS should be protesting the fact that it's legal to bribe elected officials in this country.
http://www.huffingtonpost.com/2010/09/06/obama-judicial-appointees_n_706590.html
Probably the most dangerous of these ideas is a growing belief that "biblical law" is a higher law than the Constitution. You can read such claims in their own words here:
http://www.icr.org/article/20528/228/
"[T]here is indeed a higher law than even that of the Constitution. The founding fathers called it “the law of nature and of nature’s God,” or “the laws of divine providence.” Studies of English jurisprudence (as codified particularly in the works of Blackstone and Rutherford) make it plain that the English common law was nothing more nor less than applied Biblical law."
The Constitution, in this dangerous theory, is not a shield against state-imposed religion but an *instrument* of it.
Their many ways ot twisting the Constitution and the courts to achieve antithetical ends is quite diabolical.
That lets people consolidate their complaints - they don't have to decide which to complain about - liberal judges, do-nothing congress, or socialist presidents. They can just complain about the "GD insurance company".
You get issued an insurance policy when you're born. You pay monthly, and then when something happens, you find out it's not covered. But you keep paying because you don't want to lose your coverage.
Sounds like a really good plan, eh?
The Crazy Right Wingers just want to have an opportunity to impose their views on the entire society and resent any possible checks or balances that might thwart that goal.
Based on writings, quotes, and the Federalist papers one can conclude the founders intended the judicial branch to be the least powerful, not the most powerful. Think about it, If the supreme court rules 2 2=5 then unless another court over turns the ruling or congress amends the constitution, it is now the law of the land.
Whether you're liberal or conservative you it's hard to argue the court is not too powerful already.
You do have an interesting point, that the authors didn't intend a specific pattern of checks and balances, but rather that the judiciary should be "least powerful". I guess it's too bad they didn't say that. Think about what could happen if a President declared war on the wrong country, and congress just went along because "we have to do something, preferably something really stupid".
What you mean is that judges are easy targets because they don't fling crap back. They don't have to - all they have to do is let you try to do a better job.
We already know that the Republican front-runner refuses to read 4 pages, so I guess we have to wait a couple of minutes before he proves what a complete fool he is.
How many pages can you read? Don't blame lawyers for being "too powerful" because they learned to read >3 pages - to paraphrase Cain, "if you're ignorant, blame yourself." I would add, if you're proud of your ignorance, you've got no room to whine about being pushed aside by people without a high school education who don't even speak the language, but at least know what they want and are willing to work for it.
Although you served 17 years, until you chose to retire, even your term should have been strictly limited to, say, 12 years. After which you cannot serve as a Federal Judge anywhere, except possibly an 8-year term on the Supreme Court.
Senators and Congressmen, too, must have term limits, as must non-elected civil officers.
This isn't "American Idol," as you do in fact well know. What it is, is public accountability as well as a compulsory relinquishing of the reins of power.
This statement has absolutely nothing to do with you, nor with the wisdom nor the competence nor the judgment of you or your colleagues. Rather, it has to do with the fundamental observation that "absolute power corrupts absolutely." Whether that "corruption" occurs in the literal sense of truly criminal behavior (which behavior we do, in fact, see right now in the US Congress and elsewhere in utter defiance of Article 2 Section 4 Word 25), or simply in the natural trust in one's own judgment in preference to the collective opinion of your friendly neighborhood Legislative Body, the "corruption" occurs nonetheless.
This is why I fundamentally believe that the term of power of each and every government officer, in any capacity and in every one, must be limited by Time.
I also believe that judiciary decision-making should be subject to Legislative review. Judges do not make the laws. Judges also do not "make" the laws by virtue of "interpreting" them. For example, having declared that a law is contrary to, say, the Constitution, the Judge should not have the prerogative to say what happens next, but must remand the decision to ... the Legislature.
Yes, I am describing a sharp break from the traditions of jurisprudence, but I think it is the right thing to do.
In your Teabagger/Ann Rynd fantasy, the American dream would be dead, as "law" would be meaningless.
Because you are obviously ignorant, I will spell it out for you: the Judicial branch determines the scope and legality of laws. If people don't like a ruling, it is up to them to petition the LAWMAKING BRANCH OF GOVERNMENT (hint: Congress) to make a new law. The Executuve branch then enforces the laws. The Judicial branch, in turn, serves as a "check" on the Executive's power, to ensure they stay within the law.
If you cripple the Judicial, then there would be no check on either the Legistlative or Executive branches. There would be no review of law to invalidate flawed/illegal law. In essence all law would be above review. That would be awesome!
I put on a uniform once to defend my country. I would certainly defend it again against foolish children who wish to destroy it because they do not understand it (or hate the freedoms it provides).