Conservatives are correct when they complain that some liberal judges undermine the principle of government by the people. They’ve done much worse than remove God from the Pledge of Allegiance. With legal arguments charitably described as “arbitrary,” they have imposed tax increases, quotas and same-sex marriage from the bench, usually upon unwilling populations that would never choose these things for themselves.
With very flimsy justification, some judges have resisted the public’s ability to govern on important and sensitive subjects like abortion. They have at times simply set aside election laws — recently in Chicago, but more consequentially in the New Jersey U.S. Senate election of 2002.
They have struck down common-sense reforms of the tort system (as in Illinois) and blocked (if temporarily) needed reforms to public employee pensions, pay and work rules.
The problem is that judges are legislating, which they should not do. And one presidential candidate, former House Speaker Newt Gingrich, has a solution. Congress, he says, should instruct federal marshals to drag judges before congressional committees and force them to justify their decisions. It should, in some cases, abolish their judgeships altogether.
Gingrich’s answer to judges legislating is essentially to have legislators start judging instead. It is a second wrong that does not make a right.
The Constitution protects federal judges’ independence by giving them lifetime appointments. Our Founding Fathers cared enough about this issue that they also protected judges from pay cuts by future vengeful Congresses.
Judicial independence is a beautiful thing that perhaps we don’t appreciate enough. In less free nations, judges live under the thumbs of presidents and dictators, and the people there are less free for that reason.
As bad as judicial abuses may seem, an independent judiciary is probably worth the price of the occasional outrageous abuse. This is something conservatives would do well to remember as the Supreme Court considers undoing President Obama’s health care law.
Do we really want a future Speaker Pelosi or a Speaker Hoyer to abolish the circuits that overruled Obamacare, or to browbeat justices over their decision?
As Alexander Hamilton put it in The Federalist No. 78, the judiciary “will always be the least dangerous to the political rights of the Constitution,” because judges control neither the government’s wealth nor its sword.
Even the power of their judgments, he notes, depends upon the executive’s willingness to enforce them. Judges’ abuses can often be repaired upon appeal or through the political process.
In the worst cases, they can be fixed gradually with judicial appointments. (Note that even Roe would likely be history by now, had only President Reagan been more diligent in this area.)
It seems counterintuitive, but our nation’s modern history suggests that abuses by presidents and Congresses are much longer-lived than judges’ mischief. Here, conservatives should call to mind the various entitlement programs that now threaten our nation’s future, not one of which was created by a judge.
They should think of the well-meaning environmental laws that Congress passed in the 1970s, which are used today to kill jobs and tie up commerce in the courts.
They should think of the National Labor Relations Act of 1935, which, 76 years later, continues to sustain the political power of zombie labor unions that long ago outlived their economic relevance.
If anyone can appreciate the idea that judges should be protected from government bullying, it is Congress, whose members enjoy similar special protections, all for the public good.
Among other things, members are free to speak and vote because of legislative immunity, a principle enshrined in our Constitution and supported before that in England by St. Thomas More.
Perhaps Gingrich should take warning from that same saint, whose character in “A Man for All Seasons” warns his son-in-law against the excesses of zeal. Presented with the option of cutting down England’s laws in order to slay the Devil, More replies: “And when the last law was down, and the Devil turned ’round on you, where would you hide … the laws all being flat?”
David Freddoso is The Examiner’s online opinion editor. He can be reached at [email protected].
