Copyright by James Carlson
First let me say that without America’s Judiciary, there will be no justice and no liberty in our country; I’m not at war with the Court - I am not an anarchist. I believe in the U.S. Constitution and the Rule of Law and I will defend it by all means legitimate (legal). That said, the Courts in America are a hot mess with the excesses of Judicial Supremacy. We didn’t get here overnight and it will take some time to right what is wrong with America’s Judiciary. Let’s review a few tools that may be used to restore the Checks and Balances on the U.S. Court System.
Judicial Supremacy
Before diving too deep, let’s agree that the Supreme Court is the final arbiter for what the Constitution says in CASES!!! brought before (threats of litigation do not apply). I’m talking about Judicial Review; I subscribe to it and cringe when people oppose it. It is a necessary bulwark against out of control Congressional and Presidential power. But who holds the Courts accountable when they are out of control?
Again, I want to be perfectly clear, Judicial Review is an accepted Constitutional principle that needs to be defended and maintained. The problem isn’t Judicial Review but Judicial Supremacy! This is where the fight is. And if we intend to win this fight, we need to be sure we are standing on a firm foundation. In no situation can we as conservatives fix what’s wrong with the Courts if we undermine ourselves by attacking Judicial Review. Let’s set ourselves up for success and not failure. That said…
Judicial Supremacy is similar to Judicial Review but where Judicial Review is based upon CASES!!! brought before the Supreme Court, Judicial Supremacy extends itself further into all matters government activity. The Supreme Court is only the final arbiter of the Constitution when cases are brought before it; they are not the final arbiter in all branches of government at all times. Lawyers who work for the Courts bring cases before the Courts that empower the Courts to hear and then decide upon cases. The simple ability to bring a case to the Court represents a power to entertain new issues before the Court; a power that is out of control.
Limit Extraterritorial Jurisdiction (ETJ)
The extension of Judicial Supremacy is similar to the ETJ used by cities to expand their boundaries to incorporate more land, citizens, and tax dollars. ETJ is used in this manner by the Courts to expand upon its jurisdiction nationwide in matters of Court interest in politics, legislation, and administrative actions. The Courts apply their version of ETJ contrary to the Constitution of the United States of America. The jurisdiction of the Courts are set by Congress and not the Courts. This ability of Congress to limit their jurisdiction geographically also includes what cases can be brought before these Courts; Congress has the ability to limit the cases that the Court can hear. But the use of this power has become lethargic. This Check and Balance on the Court is nowhere to be found.
Require Clear Principles of Constitutional Decisions
Judicial Supremacy can also be found where the declarations of the Courts as to what is Constitutional (made within the bounds of Judicial Review) may not be clear. Court decisions are often littered with dictum (verbiage) that doesn’t relate to the final decision on what the Constitution says and is nothing more than the chatter of jurists on the Court who want someone to hear them. History and other content often clouds what the Courts have determined is the Constitutional principle at issue in a case. The ability to have a clear cut decision as to what is Constitutional provides a clear foundation for the repair of what is declared unconstitutional.
Legislative laws or Administrative Acts that were overturned by the Courts can be returned by the originating authority agreeing to the Constitutional principle and amending their Acts to agree with the same. The ability of the legislative power to correct their laws is paramount so that the laws are not permanently removed, leaving society without the rule of law. The inability of the administrative power to amend their actions similarly puts society at a point of anarchy. Lawlessness is a symptom of now laws or the enforcement of law. The Court is required to be clear and the respective powers need to respond according to prevent a perpetual state of anarchy.
Amend Legislative Acts and End Judicial Legislation
The Court ruled in 1973 (Roe v Wade) that the exemption statute in the Texas abortion laws was unconstitutionally vague and ambiguous. It left the doctor/patient relationship vulnerable to prosecution when referrals were made for an abortion to save a mother’s life. The Court struck down all of Texas’ laws due to the unconstitutional nature of their exemption statute. In doing so, the State Legislature of Texas could have amended their law to agree with the Court’s decision and made the exemption statute clear and unambiguous. However, this was never done.
This Check and Balance that was available to the Legislative power in Texas was not used, which allowed abortion to remain in a state of anarchy as they can only govern by law and had no law to govern abortion with. Pro-choice anarchists even advocated for the ‘right to choose’ contrary to the Court’s decision which said that ‘a woman does not have an absolute right to choose abortion on demand.’ The anarchy the Court left the law in for Texas with was coupled with anarchy in left wing political circles.
Opposite anarchy, Rights and Responsibilities should connect with citizens and the rule of law; but for abortion, anarchy ruled supreme in Texas and nationwide (70 million dead babies now). Again, Acts overturned by the Court can be returned by agreeing with the Court and repairing the breach for the proper redress of the law (a Check and Balance). This can be still be used in the case of Lawrence v Texas by amending the law to prosecute sodomy to apply to both hetero- and homo- sexual persons. The symbiosis between the Courts and the political branches of government (Congress and the Presidency) in these matters should obligate the use of Judicial Review in a manner that repairs the breach of Constitutional principles and not leave us in a state of anarchy.
Apply the Separation of Powers
The idea of the Separation of Powers found in the Constitution is one that the Court often neglects or simply rejects. At one point it was said that inherent within every judicial decision is a legislative component. I want to thank the genius for telling us this but remind them that with the Separation of Powers, the legislative and administrative powers are powers the Courts cannot exercise.
Undaunted, the Courts continue to make decisions for an entire nation contrary to this principle. This is one description of Judicial Supremacy. There are many examples of the abuse of the boundary between the Courts and the powers of the political branches of government.
Constitutional Amendments can Limit Court Excess
The ability of We the People to follow our conscience and make laws that reflect our social moral values is inherent within the authority of the People to do so. As we see the Courts involving themselves in political issues reserved for the Legislative and Executive branches of government, the Courts are often challenged by Constitutional Amendments to limit their overreach and adherent decisions.
The most famous case was the Dred Scott decision that rule that slaves were property and the rights of property owners preceded the rights of liberty for the slaves. This was overturned by the 13th Amendment to the U.S. Constitution as slavery was outlawed.
We know of the more recent issue of abortion that treats babies in utero (unborn babies) as the property of their mothers to dispose of as they see fit. Eventually, State and a National Constitutional amendment that limits all forms of ‘elective’ abortions will prevail. Until then, the States have to grapple with the dilemma of anarchy we were given in 1973 despite Dobbs.
And still more recently we find the Court prevailing in a case against the Will of the People and of God when in California of all places, the People voted (Prop 8) to define marriage as being between a man and a woman (heterosexuals). They declared their Will in the State Constitution but the Court declared their own Will against God and the People and overturned a lawful constitutional amendment. This they did in order to do ‘justice’ to the homosexual community. Instead of following the Will of the People and of God on the subject, the Will of the Court reigned supreme. Judicial Supremacy is extremely dangerous. A national amendment is required to rein in the Court.
Remove the Court from the Oath of Office
Another example of what expands the rule of Judicial Supremacy in our country is the Oath of Office that at times is administered to elected officials where they must declare that they will follow what the Constitution says, as the Supreme Court may interpret. This is not always the case but it is another example of Judicial Supremacy. Again, the Court is not the final arbiter in all constitutional issues nationwide but only those cases brought before the Court (not Judicial Supremacy but Judicial Review).
In fact, the President of the United States can declare what is Constitutional for the Administration (Executive Branch of government) and the Congress has the same authority to declare what is Constitutional for the Legislative Branch of government; this applies to all levels of government where the Oath is administered. Where this addition of “as the Supreme Court may interpret” is added to the final sentence in an Oath of Office, it needs to be removed. The Constitution was written in the English language and we don’t need an interpretation.
Congressional Override or Presidential Veto of Judicial Actions
Who is it that is not acquainted with Judicial Legislation? We all know that political groups try to use the Court to pass laws through the Courts but the Courts don’t make legal statutes, they make legal decisions. We don’t govern by judicial decisions but by legislative statutes (the Rule of Law). And while the Courts take on the political activism that is brought to them by various lawyers, they are complicit in the violation of Constitutional limits on the Court.
[Note: Lawyers who wanted to push abortion through the Courts advertised for litigants to bring a case to the Court. Like women who take fertility pills to have a baby, those who wanted to kill babies actually got multiple litigants as a result of their ads. That is why the 1973 case on abortion was Roe v Wade (Texas) and Doe v Bolten (Georgia).]
Further, have you ever heard of Judicial Administration? This is where unelected jurists use the power of the bench to declare what the President, State Governors, etc. are to do with the administration of the government. Judicial Administration, like Judicial Legislation, is a violation of the Separation of Powers. We have seen this recently with the District Court in the District of Columbia taking on President Trump for his USAID decisions. This isn’t a power provided by Congress to the lower courts but they are doing it regardless. Again, limiting the power of the Courts is already in the Constitution where Congress and the President have the power to dismiss un-Constitutional Court actions. The political powers have the right to overrule the political use of the Courts.
[Note; the Supreme Court should have original jurisdiction in the USAID case and not the lower courts.]
There is an old rule that everyone in power is subject to a higher authority over them. This principle can work to our advantage when the Courts overstep their bounds Constitutionally. Not only is there an appeals process within the court system, there is an appeal process in Congress as well.
The Congress has the authority to define the ethics and rules of procedure that the Courts must follow. Congress also has the power to impeach jurists if they overstep their bounds. As misfeasance (misuse of power with proper authority) and malfeasance (misuse of power without proper authority) define the ‘weaponization of government,’ the ‘politization of government,’ and ‘lawfare,’ lower court officials need to be held accountable for their Acts by higher authorities inside the Court and inside Congress. Again, this is a Check and Balance that the Congress needs to use to rein in the Court’s excesses.
Likewise, the President can call on the Supreme Court to rein in the lower courts. The President can define the meaning of the Constitution for the entire country. And if/when the Supreme Court makes a decision in a case brought before it should the President find correction to his position. Unlike Joseph Biden who dismissed the Court out of hand because the Court Borked Biden, the President is not above Judicial Review, only Judicial Supremacy.
Remove the Police Power from the Court
And have you ever noticed that the Courts have their own armed enforcement security. Can we call this Judicial Enforcement? Law enforcement belongs to the Executive branch of government at the National and State levels. However, this is not a power that should reside with the Courts. There is a cooperation between these branches of government but the Separation of Powers should be present here as it should be elsewhere.
Recall that President Andrew Jackson disagreed with a Court ruling during his years as President (Chief Executive) when the Supreme Court ruled against what he wanted. In response Jackson said, ‘John Marshall has made his decision; now let him enforce it.’ To that end, the Court has taken steps exercise the police power to enforcement the decisions at law they make (not legislative statutes).
This is a problem on many levels. First, a security officer is not a police officer. A security guard is subject to their employer (basically their pay check) but a police officer is subject to the rule of law as an officer of the law. The Courts cannot just assume the power of the police (sheriffs, et al); and the police do not have to be subject to threats and manipulation of the Courts to enforce their decision. Here, the President or other Executive officers can limit the use of physical force they are used to employ. This is a Check and Balance that hasn’t been used in years and a problem that is not likely to be addressed anytime soon.
Amend the Process of Judicial Review
And while I support Judicial Review, its time for an overhaul to the application of this principle. The case of Marbury vs Madison (1804) is 220 years old. There is a mountain of Court opinions and decisions that have been made since 1804. There wasn’t that much material generated by the Court from the founding of our Constitution in 1787 to 1804 (less than 20 years). Now, we have a problem where instead of the Constitution providing a Check and Balance in deciding what is Constitutional or not, Stare Decisis is being used as the rule for Judicial Review. As such, Stare Decisis is the rule by which the Constitution receives Judicial Review. This cannot happen!!!!
As noted before, there is an extreme amount of dictum, etc., in every Court decision for amounts to judicial precedents and ruling of what is or is not Constitutional. From this the Court relies upon itself what is Constitutional. However, the Court’s precedents to not equate to Constitutional precedents and cannot be used as such for Judicial Review. Yet, with the long train of decisions comes the ever so slight maladjustment to Constitutional principles in the Courts such that every new use of Judicial Review should require a new review of the Court’s prior rulings. Suspect in the use of Judicial Review over Legislative and Executive Acts are the Court’s own Acts of Judicial Legislation/Administration. This is where we have our greatest problem with the Courts. This misuse and abuse of Judicial Review is but one more example of Judicial Supremacy.
Summary
I am sure I have not touched upon all matter judicial overreach and how to fix it; but it should be clear by now that the Court is a hot mess. The objective of the political left in this country is to misuse the Courts to get what they cannot get in the legislatures of our country or the administrative and executive branches of our nation’s government. While declaring their intent to uphold the Constitution in their Oath of Office it is clear they have no desire in doing so. It remains for us, We the People, to hold them accountable. This is still our country and our government. And it time that the BRAVE in the LAND OF THE FREE assert our Right to rein in the Courts from their practiced abuses of law. This is still our country and it is still a government of WE THE PEOPLE.
Liberty under Law; Liberty and Justice for All!!!!!!!!!!!!!!!1
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