The Federal Judiciary and Accountability
This year, our nation has been subject to federal judicial decisions that we, as patriots, feel violate the Constitution these judges have sworn to protect. Many feel, wrongly, that there is nothing that can be done after the Supreme Court of the United States makes a wrongful ruling.
At present, the federal judiciary has no oversight by Congress. The federal judiciary also does not have an inspector general that investigates its operation all though this is not what our founders intended when they framed our Constitution. When one hears or reads a commentary about any decision coming any federal bench that is considered controversial, a common adjective used to describe the judge who rendered the decision is “unaccountable.” Our Constitution was framed with the intent to have checks and balances over all three branches of government. Unfortunately, two of the branches fail to use their power to reign in the power of the third which is meant to be the weakest of the three.
There are some common myths associated with the federal judiciary including that judges are appointed for life. Article III of the Constitution states that a judge’s tenure is contingent on “good behavior.” This implies that a judge can be removed for misbehavior. Another myth is that the judiciary should be an “independent” judiciary. However, the word “independent” is not to be found in the Constitution for the purpose of describing the judiciary. A third misconception is that judges can only be removed by impeachment. Although the Constitution states officials can be removed by impeachment, it does not specify they can be removed only by impeachment. The “good behavior” clause in the Constitution was known in the late 18th century as the office holder would hold on to the office until misbehavior in the performance of their duties was demonstrated in a public hearing where the office holder would have full due process rights. If the misbehavior could be proven then the officer holder, including judges, would be removed from their office.
In the early days of our nation, federal judges were removed from office for making decisions that were considered political rather than Constitutional. In all these cases, the judge was removed by the impeachment process, rather than a trial method. Judge John Pickering of the district court of New Hampshire was removed March 12th, 1803 on charges that included “unlawful rulings.” Associate Justice to the Supreme Court Samuel Chase was impeached, but not removed, in 1804 for “political bias, arbitrary rulings & promoting a partisan political agenda on the bench.” Judge James Peck of the district of Missouri was impeached, but not removed in 1830 for “abuse of power.” Judge George English of the Eastern District of Illinois resigned after being impeached in 1926 for “abuse of power.”
We have a historic precedent for the removal of judges for making unlawful rulings, political rulings or abusing their power from the bench. Does anyone have any doubt that these same abuses do not exist on the federal bench today? I have to laugh at those to argue we need an independent judiciary when we are aware of numerous judges and justices, who were appointed by presidents on the political left, who only make decisions that favor the political left without any regard to the evidence or arguments that demonstrate the contrary position to be correct. I become angry when a judge creates a law the legislature never intended, make a decision that is contrary to the original intent to the Constitution, overturns the enacted laws of a state legislature or overturns the will of the people in a state ballot initiative. I become especially angry when a federal judge threatens a high school valedictorian if they dare mention God during a graduation ceremony. These are the judges that need to be removed from office.
What Congress needs to do is set up oversight over the judiciary and discipline those judges or justices who stray from Constitutional intent or abuse their power. The states have oversight on their judges in that the judges have to face voters at the ballot box. Recently, when the Iowa Supreme Court ruled against the will of the people and approved same-sex marriage in their state, the people responded by voting three of those justices out of office. Judges at all levels would hesitate to violate the Constitution if they knew their job would be on the line. Many states and communities also employ court watchers who report to state or municipal authorities on the judicial temperament of the people on the bench. Such safeguards should be employed at the federal level. Congress should create an office of Inspector General that has the authority to investigate all judges at the district, appellate or supreme levels that report to Congress. A court, separate from the federal system, should be established to try any federal judge for any partisan decision or abuse of power where such a complaint can be made by anyone affected by the decision. This court will be made up only by appointees of the House and will only be set up to try federal judges and their magistrates. This court will only be answerable to the House. The complaint must spell out how the decision violates the Constitution or how the judge has abused the power of their office. Those complaints found to have merit should go to a trial where the accuser states their case before the accused and the accused makes their defense. If this court finds that the judge did not live up to their oath to defend the Constitution, or abused their power in any way, then they shall be found guilty by this court, the verdict referred to the House where a majority vote will be enough to remove this judge from the bench. This was the practice of the “good behavior” clause at the time it was written. I write that the House should have final say as the House is the representative of the people and the people should have a say when a judge abuses their power.
Some will argue, what if the political left retakes the House and starts to remove judges who make Constitutionally correct decisions? This is why we need to be vigilant and elect people to the House who have both the intelligence and courage to defend and protect the Constitution. Believe me when I write that the political left is now, and has been for some time, looking for ways to remove our finest judges and justices who render decisions based on the proper wording of the Constitution.
One final myth perpetuated by the political left media is that the once the Supreme Court hands down a decision, the decision is final and the decision becomes settled law. In fact the Supreme Court has overturned 10 of their own decisions, usually many generations later, due to a change in culture rather than law. The Dred Scott decision is an example of this. Many argue that Congress cannot overturn a decision rendered by the Supreme Court. However, precedents have been set where Congress has rewritten elements of a law after a ruling has been handed down by the high court. In 1982, Congress amended the Voting Rights Act of 1965 to overrule the Supreme Court’s 1980 decision of Mobile v. Bolden on the issue of whether intentional discrimination must be shown before the act could be invoked. In 1988, Congress overruled the 1984 Supreme Court decision in Grove City College v. Bell which broadened Title VI of the Civil Rights Act. In 1991, Congress passed a broad, new Civil Rights Act that overturned five Supreme Court cases from 1989. It’s important to note that these challenges to overrule the Supreme Court were passed by a majority Democrat Congress and signed by a conservative Republican president. I cite these examples from an article by Leon Friedman in a December 2001 piece in the American Prospect. The American people need to be aware that a loud and vocal call in massive numbers to their Congressional Representatives can be effective in reversing a bad Supreme Court decision. This may not be the case in the current political climate which is why we need to get the right people through the ballot process.
Finally, I would like to acknowledge the Yale Law Review in general for some of the ideas I have cited above and in particular, the writings of Saikrisna Prakash, Steven Smith and the late Chief Justice of the United States William Rehnquist.