Whole Women’s Health v. Hellerstedt, by urging conservatives to channel Abraham Lincoln and repudiate the fallacious, anti-constitutional doctrine of judicial supremacy—under the guise of which the nine justices purport to decide sundry questions of national importance in a final and binding manner. Now, I’d like to add to that.
Since the Reagan presidency, the judicial/legal aspect of the broader conservative movement has been led by a truly wonderful organization called the Federalist Society (“FedSoc”). According to its own mission statement, FedSoc “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” Advocating textualism in statutory interpretation and originalism in constitutional interpretation, FedSoc has been tremendously successful in shaping a conservative jurisprudence markedly more intellectually cogent that the muddled mess that preceded it. Antonin Scalia was closely involved in the founding of FedSoc in 1982, and Clarence Thomas and Samuel Alito have also both been close friends. On a personal note, I was pleased to serve as a three-year FedSoc board member for my law school chapter.
Since its founding, conservatives have worked closely with FedSoc to play the long game with the judiciary—by which we would incrementally restore intellectual integrity and constitutional fidelity by means of successive nominations of originalist stalwarts to both the Supreme Court and lower courts. Certainly, there have been some dramatic successes for originalism at the high Court. The Scalia-authored gem of a majority opinion in D.C. v. Heller, which in 2008 established the Second Amendment as an individual right for the first time in our history, comes to mind. And under the guidance of then-Chief Justice William Rehnquist, the Court took significant and salutary steps to recalibrate the proper balance of power between the federal government and the States in U.S. v. Lopez (1995) and U.S. v. Morrison (2000). The federal appellate courts currently feature numerous originalist stalwarts—some of whom, such as the Seventh Circuit’s Diane Sykes and the Eleventh Circuit’s William Pryor, were named on the quasi-fascistic orange-hued fraudster’s objectively irrelevant SCOTUS list.
But in the aftermath of the deeply disappointing 2015 and 2016 Supreme Court terms, it is time for conservatives to pause, take a deep breath, and assess our current long-term trajectory as it pertains to the judiciary. Quite simply put, we are not winning. Going back to William Brennan, Harry Blackmun, John Paul Stevens, David Souter, and Anthony Kennedy (and maybe John Roberts, if you, like me, consider the original Obamacare case of NFIB v. Sebelius to be nothing short of a fundamental shift of the social contract away from liberty and toward Statism), Republicans have a nasty habit of nominating judges who inevitably disappoint and shift to the Left after being nominated.
Moreover, as the years mount and we get increasingly bad case law from philosopher-king Kennedy and his black-robed acolytes, stare decisis norms that caution against overturning precedent become more enshrined. This poses a particularly acute problem for originalists, who do not even all agree on whether to completely eschew stare decisis in constitutional interpretation (the Justice Thomas position) or to abide by at least some version of it (which Justice Scalia preached). In Whole Women’s Health, arguably the most important abortion decision since 1992’s equally terrible Planned Parenthood v. Casey, we saw this tension play out: Justice Alito and Chief Justice Roberts both refused to sign onto Justice Thomas’s more acerbic dissent, and thus once again avoided weighing in on the underlying legality of the abortion right fabricated by Republican-nominated Harry Blackmun in 1973’s Roe v. Wade.
This should be deeply troubling. Justice Alito, who after Thomas and Scalia probably falls alongside Rehnquist as one of the most conservative justices of the post-World War II era, and Chief Justice Roberts, who despite his methodological flaws (and, I’d argue, his occasional non-legal, political calculations) is more often than not a reliable conservative vote, have still not officially gone on record as saying Roe v. Wade was wrongly decided, in each of their decade-plus of service on the Court. As a pro-life friend messaged yesterday, it is “pretty devastating…what even [these] conservative justices have internalized regarding abortion.”
Insanity, as the famous (perhaps apocryphal) Einstein aphorism goes, is doing the same thing over and over again and expecting different results. Well, guess what? This isn’t working.
How much longer are we willing to wait this out? How many more unborn children must die before we change course?
Boldly rejecting judicial supremacy and re-asserting the independent ability of fellow political actors—be they in the Executive Branch, the Congress, or, indeed, in the fifty States—to interpret the Constitution in accordance with their own oaths of office is, as I wrote on Monday, a fine place to start. And, of course, the Federalist Society should continue its worthy mission of promoting originalism in constitutional interpretation and textualism in statutory construction for the next generation of lawyers and judges.
But it is no longer acceptable to simply plead “judges!” as a magical cure-all for what ails the judiciary, as an institution. And the inability of “judges!” to win more long-term victories for us over the past three-plus decades, moreover, is a damning indictment on those who would so quickly forsake their moral integrity and cast a ballot for the catastrophically unqualified, ideologically non-conservative, monstrously-unfit-for-office-as-a-human-being Donald J. Trump, merely to try to save the Supreme Court. Besides Trump’s list being irrelevant, this entire line of fear-mongering logic is inherently flawed insofar as its actual results, when put into practice over the years, have borne us very little in the way of true long-term success.
So dire is the current situation—so wildly out of control is the judiciary, and so complicit are so many in the legal academy—that there is more that needs to be done. It is also time for Congress to declare war on the judiciary.
Yes, declare war. Congress must take the tools the Framers devised for it and mercilessly deploy its “ambition…to counteract [the] ambition” of philosopher-king Kennedy and his ilk. As with a rogue younger sibling acting out of line, it’s time for Article I to discipline the “least dangerous branch.”
Last month, constitutional law scholar Michael Stokes Paulsen wrote a wonderful law review article entitled, “Checking the Court.” It is lengthy, but I highly recommend it for those who have the time; and it should frankly be a must-read for all Republicans sitting on the House and Senate Judiciary Committees. In the article, which was written largely in response to the 2015 same-sex marriage decision of Obergefell v. Hodges, Paulsen walks through the six ways that Congress can work to meaningfully check the excesses of the runaway judicial oligarchy at 1 First Street NE. I will outline the tools here and briefly comment on how the current Congress might utilize them.
- Make Better Use of the Confirmation Process – This is, by far, the most straightforward of Congress’s judiciary-oversight tools. The only point here is that conservatives on the Senate Judiciary Committee should not be cowed into thinking that a particular nominee is qualified merely due to his/her CV, duration of tenure on the bench, accolades from the academy, and the like. Instead, conservatives on the Committee should conscientiously and emphatically seek to impose an exegetical litmus test as to how nominees approach the craft of constitutional interpretation. So long as Committee members do not press for specific issue outcomes (for example, asking point-blank, “would you vote to overturn Roe?”), there is no credible argument that any governing norms of judicial independence would be compromised. The power of the Senate to offer “Advice and Consent” is right there in the constitutional text, after all, and Congress is in any event an independent and equally sovereign co-interpreter of the Constitution. Thankfully, Chuck Grassley’s resolve in holding off on the Merrick Garland nominationdemonstrates that Senate Judiciary Committee Republicans are taking their job here seriously. But if Republicans control the next Congress and Hillary Clinton wins the presidency, then the Senate Judiciary Committee should unapologetically refuse to consent to leftist “living constitutionalist” judges and force compromise picks.
- Use Radical Jurisdiction-Stripping to Limit SCOTUS’s Appellate Jurisdiction and Return More Litigation to State Courts – This is, perhaps, my favorite tool. The Supreme Court has very limited original jurisdiction, but Congress has effectively plenary power to limit its appellate jurisdiction under the Exceptions Clause of Article III. Furthermore, Article III also grants Congress the power to create (and thus, implicitly, destroy) all lower federal courts, which necessarily includes the power to define the lower courts’ jurisdictions. While it may be considered gauche by the largely pro-Article III/pro-judiciary supremacy, left-leaning legal elite, there is nothing at all wrong with Congress passing drastic jurisdiction-stripping legislation that deprives the federal courts of jurisdiction over entire areas of the law, such as abortion regulation or religious liberty. (At times, such as in the lead-up to Obergefell, conservatives such as Sen. Ted Cruz and Rep. Steve King have tried to do precisely that.) The States’ legislatures retain their own various forms of control over their judiciaries, and removing large swathes of federal-question litigation from the federal docket to the States’ dockets would serve to mitigate much of the federal judiciary’s continued damage. Other conservative commentators, such as Daniel Horowitz of Conservative Review, have also called for radical jurisdiction-stripping measures, which serve both prophylactic and punitive purposes. Intriguingly, Paulsen also posits creative ways that Congress might “mischievous[ly]” interfere with the Supreme Court by taking symbolically belittling actions such as bringing back the quaint old practice of “circuit riding,” passing legislation to remove the justices from their present marbled palace and returning them to their original location in the basement of the U.S. Capitol, or maybe even using the power of the purse to prohibit any federal funds from being used for dry-cleaning judicial robes. An affront to judicial dignity? Sure. Still awesome? I think so.
- Un-Pack (Shrink) the Supreme Court – Congress could certainly attempt to “pack” the Court like FDR did; contrary to what many believe, there is nothing in the constitutional text prescribing the Court’s specific size, aside from that there be one Chief Justice. But Paulsen thinks—and I’m inclined to agree—that a better check might actually be to decrease the size of the Court. Here is Paulsen: “Attrition is, for the patient Court-checker, a valuable potential check on a runaway Supreme Court whose runaway members run on way past their expiration date, and who try to strategically time their departures to assure the appointment of a fellow-traveler by a sympathetic administration.” This tool effectively just makes the justices’ jobs harder for them, and limits their ability to discretionarily grant appeals under the certiorari writ. Best of all, it does not require Congress to positively take any action; it actually requires them to do nothing.
- Utilize the Impeachment Power – Here is another one of my favorite tools. I am personally of the belief that the impeachment tool was designed to be used far more efficiently and frequently than it has been, in practice; I alluded to this when I wrote about the possibility of the House of Representatives filing formal articles of impeachment in late 2014, after President Obama’s lawless executive amnesty. There is some disagreement in the academy over whether the “high Crimes and Misdemeanors” impeachment standard outlined in Article II controls for Article III judges, who ostensibly appear to be guided by their own “during good Behavior” criterion. Paulsen, through painstaking historical work, demonstrates that the two standards are indeed one and the same. “High Crimes and Misdemeanors,” furthermore, was purposefully enacted at the Constitutional Convention to be a politically malleable phrase intended to grant Congress broad discretion; in The Federalist No. 65, Alexander Hamilton describes the jurisdiction of impeachment proceedings as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” The “abuse or violation” of this “trust” necessarily takes the form of ad hoc judgments. Paulsen argues that this standard does cover “misconduct by judges in the form of deliberately-made judicial decisions that Congress judges to be sufficiently clearly contrary to governing national law”; which is to say, Congress can impeach federal judges for mere disagreement on the merits of judicial issues of great importance. I think that is probably right, in line with the broad discretion implied in the “high Crimes and Misdemeanors” text, but as a matter of pragmatism, Congress would be wise to start with federal judges who either act disingenuously or who show such transparent disdain for the Constitution so as to effectively renounce their oaths of office. Naturally, the impeachment power looks a lot better when there is a Republican in the White House, unless the Senate Judiciary Committee is prepared to leave the impeached judge’s seat vacant for awhile.
- Statutorily Prescribe an Interpretive Methodology – This is an excellent forward-looking tool. Here, Congress passes a facially neutral piece of legislation to mandate a specific form of judicial interpretation; Paulsen calls it a “Judicial Activism Abolition Act.” Congress clearly possesses this power, as it is “Necessary and Proper” to carrying into effect the “judicial Power” of Article III. Congress may not inappropriately remove from the federal courts the ability to render specific judgments in particular matters within their jurisdiction, but it may outline neutral interpretive rules. This would essentially be a more substantive, and less strictly procedural, version of the Rules of Decision Act that the First Congress embedded in Section 34 of the Judiciary Act of 1789. Here is Paulsen: “Congress properly may legislate that federal courts, in cases within their jurisdiction but involving federal substantive law—’federal question’ cases—…not invent the ‘law’ for themselves, but rather be governed by the text of the federal law at issue, understood and applied in accordance with the original public meaning of its words and phrases, in context, at the time of the text’s enactment, and accounting for background understandings and specialized usages.” Congress obviously may not explicitly call for the overturning of Roe, but in facially neutral terms such as a “Judicial Activism Abolition Act,” it can call for a specific interpretive methodology—here, original-public-meaning originalism—as the sole binding rule of decision for all future federal law questions. Similarly, Congress may explicitly call for stare decisis norms to be disregarded in future judicial reconsideration of all cases (including Roe and Obergefell) that had previously departed from this prescribed rule. The complaint that this tool amounts to an infringement on the federal judiciary’s independence is superficially plausible but ultimately specious; and it is specious precisely because such an argument implicitly accepts the effective inerrancy of the judiciary in matters pertaining to constitutional interpretation, and thus also accedes to the false doctrine of judicial supremacy.
- Openly Defy Lawless Rulings by Rejecting Judicial Supremacy – This is what I wrote about on Monday; fellow political actors in our constitutional system, each of whom must interpret the Constitution for him/herself in accordance with their own oaths of office, must not be strictly bound by the idiosyncratic diktats of a bare majority of the U.S. Supreme Court. This includes the States’ legislators and governors; Paulsen argues (and I agree) that it also includes lower federal court judges (who are generally viewed as “bound” by their higher-ups, but this is erroneous, for it places far greater weight upon the malleable judicial hierarchy than it does on the lower court judges’ own judicial oaths of office) as well as state court judges. But, as I noted on Monday, Ted Cruz gets this right: it is emphatically the case that future conservative presidents and present (and future) conservatives in the Congress must not feel bound by terrible Supreme Court constitutional precedent. They are not so bound, and neither are the States themselves. Stand with Lincoln and reject judicial supremacy.
I hope this has been helpful. Only by pausing to soberly assess the current state of our judicial restorative project and by considering new plans of attack might we be able to better return constitutional integrity to our self-governance and better secure the blessings of liberty for our progeny. Above all, we need to improve our offense, as opposed to merely playing defense. It is time for Congress to declare war on the judiciary.