Real Reform, Part 4: The Supreme Court and the Judiciary

The Supreme Court and the judiciary have operated outside of the Constitution since 1803, when the court decided on Marbury v Madison. In this case, the Chief Justice, John Marshall, asserted the court’s right to judicial review. Nothing in the Constitution gives the judiciary this power. Article III, Section 2 states:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States,, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This outlines the court’s jurisdiction but, at best, tangentially relates to judicial review. Marshall combined this tenuous clause with some English Common Law to create judicial review out of whole cloth.

There are four critical issues in the judicial system now:

• Cornell says Judicial Review is “Judicial review is the idea, fundamental to the U.S. system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the Constitution.” Note, the Constitution does not provide for this power. John Marshall created it in Marbury v. Madison.
• LegalDictionary says Judicial Activism is “a legal term that refers to court rulings that are partially or fully based on the judge’s political or personal considerations, rather than existing laws. In basic terms, judicial activism occurs when a judge presiding over a case allows his personal or political views to guide his decision when rendering judgment on a case..
• LegalDictionay says Precedent is “a rule, or principle of law, that a previous ruling have established by a court of higher authority, such as an appeals court, or a supreme court. Courts in the U.S. legal system place a high value on making judgments based on consistent rules in similar cases. In such a system, cases based on similar facts have a fair and predictable outcome.
• Lifetime tenure. Article III, Section 1 of the Constitution, states, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The question is, what is “good Behavior”? What is the standard used to determine it or the lack thereof? Now, the Constitution does not specify lifetime tenure. That seems to be custom, not a Constitutional requirement. The only reason perhaps that it has evolved into a lifetime tenure is the other two branches of government specify terms (Congress in Article 1, Section 2 for the House and Section 3 for the Senate, and the President in Article II House in Section 2).

The power involved in the first three bullets explains why judges stay in office even when they are no longer capable. Ruth Bader Ginsburg is just one example. “Good Behaviour” should have a cognitive component and a professional conduct component. Now I don’t mean to impugn Justice Ginsburg’s character, but she, Like Justice Marshall, was clearly not fully competent in their last years in the court. They hung because no one is really sure what “good Behaviour” means, and the political parties understand holding the office is more important than the incumbent. All justices appear to engage in a degree of judicial activism; some more than others.

At least two administrations understood this issue. Both the Franklin Roosevelt administration and the Biden administration have tried to pack the court with additional justices that would engage in judicial activism to push their programs through the court.

We see judicial activism in spades at the federal district court level. District judges issue rulings that stop executive action often. While the Supreme Court gets most of the press, the district courts wield a great deal of power. See Duke’s analysis of whether these actions are legal. Legal are not, these are examples of judicial activism, especially when the judge thinks the Constitution is no longer relevant.

Recommendations to address these problems.

• Define “good Behaviour” and establish standards that are clear and enforceable.
• Either amend the Constitution to provide for judicial review or declare the process unconstitutional and eliminate it.
• Eliminate the precedence system and rule by established law.
• Establish clear rules to impeach judges that do not follow the Constitution or do not follow the standards for “good Behavior”.
• Amend the Constitution to establish the size of the Supreme Court to prevent further attempts at court packing.

The judicial system is the least defined branch of government in the Constitution. This lack of definition provides a vehicle for people of both sides to engage in judicial activism. Given the power of the courts to effectively legislate, we need to properly define their role and power. We cannot rest on English Common law and hope for the best. The judiciary has become a hybrid of the legislature and the bureaucracy, something I doubt the founders of the Republic wanted. In this role, they potentially act on their own cognitive biases as the engage in judicial activism.