In his 19th and perhaps final year-end report on the federal judiciary, Chief Justice William Rehnquist warned that judges must be protected from political attacks.
Singling out members of Congress who have criticized activist judges and introduced bills to limit their jurisdiction, Chief Justice Rehnquist defended judicial independence from those who disagree with court decisions.
But the chief doth protest too much. The court is not under attack from political demagogues. No, the “mounting criticism” of the judiciary that disturbs Justice Rehnquist has developed because responsible people from across the political spectrum feel courts are making policy on matters beyond their purview.
And, of course, it doesn’t help that courts are making decisions that overturn policies mandated by voters and their representatives.
Courts are not simply facing political threats from partisan legislators disappointed that courts disagree with them. More fundamentally, the critics raise legitimate questions about whether courts are exceeding their jurisdiction and, short of doing nothing or impeaching justices, they are asking, “What can be done to check the judiciary and return public policymaking to the legislative and executive branches?”
Rather than a congressional check to judicial activism, Chief Justice Rehnquist says we should rely on appeals to higher courts and the judicial nomination and appointment process. Having a higher court fox guard the lower court hen house is hardly a check on judicial power. And, even assuming new judges would have a different view of judicial activism, new nominees in a time of filibusters and delayed appointments would need decades to balance the bench.
In fact, the Constitution gives Congress far more power over the judiciary than Justice Rehnquist’s report would allow. Who decides on the pay of judges, the size of the Supreme Court or what lower federal courts should exist or how they should operate? In each case, the correct answer is Congress.
Indeed, Article 3, Section 2 of the Constitution says the Supreme Court’s appellate jurisdiction shall fall under such regulations and with such exceptions as Congress shall make.
After lengthy explications of congressional and executive powers in Articles 1 and 2 of the Constitution, Article 3 concerning the judiciary is quite brief. Indeed, Alexander Hamilton argued that judicial independence was warranted only because the judiciary is the weakest of the three branches of the federal government. The judiciary, without either the power of the purse or the sword, was designed to check clear abuses by the other branches of government.
Congress is to pass laws, the executive is to carry them out, and the judiciary is to be reactive, reviewing potential abuses by the political branches. It would never happen, said Hamilton, that the judiciary would substitute its own will for that of the Congress or the people.
But now it happens all the time. More than 50 years after Congress deliberately added the phrase “under God” to the pledge of allegiance, two judges in the U.S. 9th Circuit Court of Appeals decided to take it out. Even though the Ten Commandments are part of the art and architecture of the U.S. Supreme Court chambers, judges have now decided they should not be displayed in state facilities.
Then four judges in Massachusetts decided it was time to countenance same-sex “marriage.” This is not a reactive check and balance against legislative tyrannical action; this is a proactive policymaking agenda that courts have appropriated unto themselves and with which the electorate disagrees.
While Chief Justice Rehnquist objects to introducing bills in Congress to limit federal court jurisdiction in these areas, the Constitution specifically provides that Congress may extend or limit court jurisdiction. Congress has extended jurisdiction in the past, and it is time for Congress to entertain limiting jurisdiction in the present. And it is high time we challenge the myth, created by the judiciary itself, that the Constitution is only what a court says it is.
In the final analysis, Justice Rehnquist and others on the bench feel courts should be independent of regular political accountability. But after courts left their limited role as a reactive check and undertook a proactive political agenda, even greater accountability was needed. It is unfortunate that, when Congress decides to exercise its constitutional authority, the chief justice warns of the impending demise of the independence of the Supreme Court.
David Davenport, a Hoover Institution research fellow, and Gordon Lloyd are public policy professors at Pepperdine University.