Judicial Activism: Eight Ways To Stop It!
By David W. New, Esq. The Covenant News ~ September 19, 2006
The American Bar Association released a poll indicating that the American people believe that judicial activism has reached a 'crisis stage' today. Note 1. The controversial subject of judicial activism which was once considered the sole domain of political conservatives has hit Main Street USA. Millions of Americans now believe our courts have exceeded their authority. They believe that too many jurists are acting like legislators rather than judges. It is difficult to know when or how the public's attitude toward the courts changed, but it is certain that a change has occurred.
Some commentators point to the Bush v. Gore decision in 2000. They claim that this decision did a lot to change the public's attitude toward the U.S. Supreme Court. Many people believe that if the Supreme Court had not interfered in the election, Al Gore would have won the presidency. Others point to the Texas sodomy case. Since the Constitution says nothing about homosexual sex, most people find it difficult to believe that sodomy should be constitutionally protected. And except for extremist groups like the ACLU, almost everyone thinks the gay marriage decision in Massachusetts was crazy.
This article will present eight different strategies to combat judicial activism. Some of these ideas are good ones. Some are not. In any case, remedies are available to the American people. The law can be used to control abusive courts. The reader is invited to choose one or more of the following strategies to solve the problem. Let us explore the options below.
STRATEGY NO. 1: Limit the Jurisdiction of the U.S. Supreme Court and Lower Federal Courts.
This option has received a lot of attention in the media lately. There can be no question that the Congress can limit the jurisdiction of federal courts including the U.S. Supreme Court. For example, if Congress wanted to, Congress could pass a law stating that no federal court will hear any case involving school prayer or Bible reading in the public schools. In the 1960's, Congress attempted to pass such legislation many times without success. The U.S. Constitution gave Congress the power to limit the jurisdiction of the Supreme Court in Article III, Section 2, Clause 2. Notice the words " . . . under such Regulations as the Congress shall make."
STRATEGY NO. 2: Require a Super Majority on the U.S. Supreme Court.
Question: does the Constitution say that 'majority rules' on the U.S. Supreme Court? Where does it say that a 5 to 4 decision is the winner? Or that a 5 to 4 decision is the law of the land? Absolutely No Where! Few Americans realize that the U.S. Constitution says nothing about the majority ruling on the Supreme Court. The Constitution says nothing about 'majority rules' or words to that effect anywhere in the text. The majority rule standard used today by the Supreme Court is one that they have adopted by themselves. It is not in the Constitution. Historically, the idea of 'majority rules' was not in the mind of Congress when they established the Supreme Court. This must be true since the Supreme Court was limited to six members when George Washington was President.
A good way to control juridical activism is to require a super majority for any decision which affects a state law. For example, consider the Texas sodomy law. In 2003, it was declared unconstitutional by a 6 to 3 vote on the U.S. Supreme Court. Congress could pass a law (no amendment is necessary) stating that for any state law heard on appeal to the U.S. Supreme Court, a 7 to 2 vote or an 8 to1 vote is needed to over turn it. In our example, the Texas sodomy law would have been upheld since the vote was 6 to 3. A super majority requirement would substantially strengthen the state governments. They would have more power to control their own internal policies for issues involving criminal justice, family law and other areas.
STRATEGY NO. 3: Reverse the Cantwell v. Connecticut decision.
Question: when was the first time the First Amendment was used in a case involving school prayer or Bible reading? Answer: 1950. The first time the First Amendment was used in a case involving school prayer did not occur until 1950 in the state of New Jersey. Note 2. Prior to 1950 there were about 30 cases involving Bible reading and prayer in the schools. However, in not one case was the First Amendment used. Why was the First Amendment not used before 1950?
The reason is simple. When the First Amendment was ratified in 1791, its jurisdiction was limited to the Federal Government. Congress deliberately limited the jurisdiction of the First Amendment and the federal Bill of Rights. They did this so that each state would be free to govern itself-- with its own bill of rights. Therefore, issues involving religion, crime and other matters were left to the states to decide by themselves. This was the rule in the United States for 150 years.
However, in 1940 the U.S. Supreme Court changed the rule. In a case called Cantwell v. Connecticut, the Supreme Court told one of the biggest tales in its history. The High Court claimed that the Fourteenth Amendment changed the old rule and made the First Amendment applicable to the states. This new rule was called the 'incorporation theory' or the 'incorporation doctrine.' It was said that the Fourteenth Amendment incorporated or applied the First Amendment to the states. Note 3.
A substantial amount of the judicial activism by the U.S. Supreme Court is a direct result of the incorporation theory. The ban against classroom prayer for example is a direct result of it. It is likely that organized prayer and Bible reading in the public schools would be allowed today but for the incorporation theory. Much of the judicial activism involving criminal law in the 1960's would not have been possible but for the incorporation theory. The net effect of the Cantwell decision was to concentrate substantial amounts of power in the U.S. Supreme Court. In reality however, the theory is a complete sham. It was invented by the Supreme Court as a way to grab more power for themselves.
We need to pass an amendment to reverse the Cantwell decision, to limit the jurisdiction of the federal Bill of Rights to the Federal Government. We need to restore the old rule Congress established in 1791. Note: reversing the Cantwell decision will have no effect on abortion or gay 'rights.' At the federal level, these so called 'rights' are based solely on the Fourteenth Amendment.
STRATEGY NO. 4: Change the Amendment Process in Article V to the Constitution.
It is very difficult to amend the Constitution. It's like pulling teeth from a shark. The framers of our Constitution intended to make change difficult. Unfortunately, the framers never foresaw the power house the U.S. Supreme Court has become today. In their worst nightmare, they never dreamed that the courts could become so reckless. The practical reality is, once the Supreme Court declares some activity unconstitutional, it's over. It does not matter if a majority in the Congress, the President, and the 50 state governments think otherwise. This is true because it is very hard to reverse a Supreme Court decision. The school prayer decisions of the 1960's are a good example of this. Unless you can pass an amendment to the Constitution or wait for a new set of judges to come onto the Court, it is almost impossible to reverse a Supreme Court decision. This must stop.
We need to make the amendment process a little easier. The U.S. Constitution has been amended only 27 times in over 200 years. By comparison, it is much easier to amend the state constitutions. For example, the 1901 Alabama Constitution has been amended more than 600 times. It is time for a change.
The Current Methods.
Currently, there are two ways to amend the Constitution. One of the methods has never been used. The constitutional convention method has never been used. If 2/3's of the states call for a constitutional convention, then one must be held. If a convention can agree on a proposed amendment, then the amendment must be sent to the states for approval. If 3/4's of the states approve of the amendment, then the amendment is added to the U.S. Constitution.
The other method is for Congress to propose an amendment. To date this is the only method that has been used. If 2/3's of the Congress can agree to a proposed amendment, then it is sent to the states for approval. If 3/4's of the states approve of the amendment, then the amendment is added to the U.S. Constitution. This has occurred 27 times in our history.
The Proposed Change.
I propose one simple change. Instead of requiring a 2/3's majority in Congress to propose an amendment, I propose a simple majority. If a simple majority in both houses of Congress agree to a proposed amendment, then it must be sent to the states for approval. If 3/4's of the states approve of the amendment, then the amendment is added to the U.S. Constitution. This change will shift power away from the U.S. Supreme Court and back to the people. It will be considerably easier to reverse an unpopular decision by the Supreme Court.
Of course, to get this change in place will require using the current methods. This means it will be difficult. Note: the President has no official role in the amendment process either now or under my proposal.
An Alternate Proposal.
There is another proposal worth mentioning. Since the convention method is unpopular with Americans, this has had the effect of denying the states the ability to propose amendments to the Constitution. We could amend the Constitution to allow the states to propose amendments the same way Congress does now. For example, if 2/3's of the states agree to a proposed amendment, then it is sent to all of the states for approval. If 3/4's of the states approve of the amendment, then the amendment is added to the U.S. Constitution. In this proposal however, many of the states which initially made up the 2/3's majority would be required to vote for the amendment twice.
STRATEGY NO. 5: Give Congress Veto Power over the U.S. Supreme Court.
If accepted, this proposal would change our system of government a lot. It would allow Congress by a 2/3's majority or possibly a simple majority to veto a decision by the U.S. Supreme Court. This is similar to a parliamentary system of government. Admittedly, this proposal might be an effective solution to judicial activism but it does have some problems. First and foremost is the concept of judicial independence. An independent judiciary is a vital asset to liberty and freedom. Judges should have the power to make decisions free from political pressures from the White House and the Congress. The framers of our Constitution understood the importance of judicial independence. If we give Congress veto power over the Supreme Court, this would damage the independence of the federal judiciary. I am not aware of any state constitution which gives its legislature direct veto power over the courts.
STRATEGY NO. 6: Elect the Members of the U.S. Supreme Court.
At present, there are 39 states which permit judicial elections of some kind. It might be possible to allow for elections within the federal judiciary as well. Various proposals have been suggested. One proposal would permit an election every time a vacancy on the U.S. Supreme Court occurs. Once elected, the person would serve a life term subject to good behavior. Of course, the flaw in this proposal is obvious. Nothing would politicize the U.S. Supreme Court more than electing its members. However, supporters of this proposal respond by noting that Supreme Court nominees are elected now. They argue that the Senate Confirmation process has effectively become a full dress political campaign.
However, there is another proposal which has some possibilities. Currently, the President appoints and the Congress must approve any nominee to the U.S. Circuit Courts and the U.S. District Courts. Most members who serve on the U.S. Supreme Court come from the U.S. Circuit Courts. We could change the present system. The President would continue to nominate people to serve on the U.S. Circuit Court. However, we could allow the voters to make the final decision, not the Congress. The nominee, who would run unopposed, must get 50.1% of the vote to win a sit on the U.S. Circuit Court. In addition, her or his term would be limited to 14 years. After 14 years, the candidate must be re-nominated by the President and win another election or retire. The present system for filling vacancies on the U.S. Supreme Court and the U.S. District Courts would continue.
This proposal or some form of it has some advantages. First, this proposal would preserve judicial independence. This is true for two reasons: a) the U.S. Supreme Court is not affected and b) a 14 year term on the U.S. Circuit Court provides protection from political pressures. Second, this proposal would not politicize the federal judiciary. This is true because most candidates selected to serve on the U.S. Circuit Court would continue to come from the U.S. District Courts. They are not elected. Third, judicial extremist within the U.S. Circuit Courts would be weeded out. For example, if the people in the Ninth Circuit had the power to vote for the Circuit Court Judges sitting in San Francisco, in time most of the extremists would be gone. Finally, the people would have another way to influence the selection process to the U.S. Supreme Court. The voters would influence the pool of candidates likely to serve on the U.S. Supreme Court.
I am not convinced that members of the Circuit Courts should be elected. However, I am willing to study the proposal some more.
STRATEGY NO. 7: Limit the Term in Office for Members of the U.S. Supreme Court.
This proposal would change the current life time appointment for federal judges required by Article III to the Constitution. For example, a Justice on the Supreme Court would be limited to one term of 14 years. Another possibility would be to allow a Justice a second or third term subject to re-nomination by the President. These proposals would give the Supreme Court more fresh new members. In addition, the President would have the ability to retire an activist judge at the end of his or her term. The down side to this proposal is obvious. A liberal President would have the ability to retire a conservative Justice as well. Nevertheless, this proposal has one big advantage. The fitness of a judge to serve on the Supreme Court is made every 14 years. Sometimes a judge should be retired regardless of his judicial philosophy.
STRATEGY NO. 8: Create a Court of the Union.
This proposal would create a new national court called a "Court of the Union." Membership on the court would consist of the chief justice from each state. The Court of the Union would have the power to review any decision made by the U.S. Supreme Court that affected the "rights reserved to the states." Its decisions would be final. Only an amendment to the U.S. Constitution could overturn a Court of the Union decision. This proposal was made in 1962 by the "General Assembly of the States." The General Assembly of the States was a national organization of elected state officials and members of the state judiciary which considered matters of interest to state government. The resolution to create a Court of the Union was approved by a vote of 21 states in favor to 20 against with 5 states abstaining. Note 4.
This proposal would change the United States a lot. If adopted, it would definitely shift power back to the states which would be good. However, there are a lot of risks in creating a new national court. I think other options should be considered first before creating another national court.
The above options are just a sample of strategies that might be used to curb judicial activism. There is no question that something needs to be done to protect representative government in the United States.
To learn more about the Constitution and the First Amendment, read my publication, The First Amendment and the Bill of Rights for Beginners. For ordering information visit: www.myfirstamendment.us
NOTES.Note 1. Half of U.S. Sees 'Judicial Activism Crisis' by Martha Neil, ABA Journal eReport, September 30, 2005. Note 2. Doremus v. Board of Education, 71 A.2d 732 (1950). Note 3. Cantwell v. Connecticut, 310 U.S. 296 (1940). Note 4. Amending the Constitution to Strengthen the States in the Federal System, State Government, Winter, 1963, page 10 at 13.
David W. New is an attorney and author in the Washington, D.C. area. He is the author of "Religious Freedom in America for Beginners," which is available on Amazon.com.