The judiciary is supposed to be the ultimate protector of our
freedoms, the Constitutional creature that guards us against the
depredations of Congress and the presidency. Instead, it has become
our greatest source of anguish. The other branches of government
produce enough on their own. The President often reduces liberals
to sputtering outrage and has the same effect on conservatives when
the subject of illegal immigration comes up. Congress — when it’s
not performing its primary role of inside-the-Beltway comic relief
— often leaves us scowling and mumbling (especially in April
which, thanks to them, truly has become the cruelest month). But it
falls to the courts, and not just the Supreme Court, to produce the
gut-wrenching, feel it in your bones kind of anguish that simmers
constantly. We feel powerless about what they do because, for
decades, we have been.
What hits you most deeply? Odds are it’s something the courts
have done that affects your daily life or your beliefs. Other than
the war, the issues that are Balkanizing America are those that the
courts have decided to decide, usually without Constitutional
imprimatur and in contravention of long-standing precedent. So
what’s your poisonous penumbra? Roe v. Wade? Gay marriage?
The anti-constitutional hijacking of the President’s powers as
commander in chief? How about Sandra Day O’Connor and Anthony
Kennedy importing European law to decide American constitutional
issues? For House Majority Leader Tom DeLay, the breaking point was
Terri Schiavo.
The law comprising Congress’s extraordinary intervention in the
Schiavo case said explicitly that her rights were to be determined
de novo and without regard to anything that had been
decided in state court. But federal judge Whittemore thumbed his
nose at the law and declined to take new evidence that would be
both necessary and proper to do in a de novo proceeding.
When Mrs. Schiavo died last week, The Hammer ratcheted up the
anti-judge rhetoric to unfamiliar heights. “We will look at an
unaccountable, arrogant, out-of-control judiciary that thumbed
their nose at Congress and the President,” DeLay said. In what the
hyperventilating Dems characterized as incitement to riot, DeLay
hinted at impeachment of the judges: “The time will come for the
men responsible for this to answer for their behavior.”
DeLay wasn’t calling for peasants with pitchforks to storm the
court houses. He said aloud what a great many Americans were
thinking. Americans no longer trust the courts to dispense justice
and protect freedoms. The judiciary has become just another branch
of government competing for power against Congress and the White
House. And winning, because neither Congress nor successive
presidents have taken up the challenge.
IT’S WRONG TO THINK OF THIS issue in terms of the questions we
don’t trust the courts to decide. And let’s not even talk about
amending the Constitution to change the court system. Even if it
was a good idea, which it isn’t, it would fail because those who
benefit most from judicial activism would make passage of any such
amendment fail in Congress or among the states. We have a problem
now, and it can be remedied, if not entirely solved, if only the
President and Congress will make it a priority.
There’s only one way to pose the question correctly: what should
be done to constrain federal courts without infringing on their
proper Constitutional function? Legislation is two parts of the
answer. If the courts misapply the law, change the law. If they
usurp the constitutional powers of the President or Congress, limit
their jurisdiction over the issue.
Congress bestirred itself to pass — at a speed usually reserved
for declarations of war — a special law expanding federal courts’
power to intervene in the Terri Schiavo case. But in almost a year
since the Supreme Court’s decision in Rasul v. Bush
extended the right to habeas corpus review to
non-Americans held outside the U.S. (and nearly a month since U.S.
District Judge Rosemary Collyer issued an injunction against the
movement of detainees from Guantanamo Bay, Cuba, to Yemen), there’s
nary a peep from Congress — or the President — about fixing the
habeas corpus statute to limit its application to those
persons held within the territorial jurisdiction of the courts. It
would be simple to fix a huge problem this way. Why aren’t we doing
it?
THERE MUST BE A DOZEN or more laws such as the habeas
corpus statute that the courts have turned inside out. Why not
gather them together and repeal or amend them to solve the problem?
If Congress and the President want to get back into the competition
that the courts now dominate, that’s the best — and Constitutional
— way to do it. In some other cases, there may be need to exclude
certain issues from the courts’ jurisdiction. Why not have a
vigorous Congressional debate over this? Speaker Hastert could ask
Judiciary Committee Chairman James Sensenbrenner to study and
recommend a list of laws that need to be corrected. How better
could Congress spend this summer than fixing what the courts have
broken, and deciding how to limit jurisdiction in the cases that
can’t be solved otherwise?
Another solution is, as Tom DeLay tried to say, is bringing the
worst of the errant judges to book. The Supreme Court has,
repeatedly, undertaken to import foreign law to decide American
cases. First in Lawrence v. Texas, holding the Texas
anti-sodomy law unconstitutional, and again in Roper v.
Simmons (in which the Court prohibited execution of people for
capital crimes committed while under the age of 18), the Supreme
Court wrote about foreign law — implying it influenced its
reasoning — but didn’t have the courage to adopt its guidance
openly. Were they to do so directly that would be a violation of
the justices’ oath of office, and as severe an impeachable offense
as if they had taken a bribe on a case. Any judge who doesn’t
understand that they cannot use laws adopted abroad — which
America’s elected Congress and President cannot write or repeal —
to decide American cases is unfit for office and should be
impeached.
If Terri Schiavo’s death changes anything, let it be the
competitive position our courts dominate against Congress and the
President. Because the Founding Fathers never intended that they
should compete, it is essential that they lose.
TAS contributing editor Jed Babbin is the author
of Inside the Asylum: Why the UN and Old Europe Are
Worse Than You Think (Regnery, 2004).
