Loose Canons

Poisonous Penumbras

America's judges have lost our trust.

By 4.4.05

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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).

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. He is coauthor (with Herbert London) of the new book The BDS War Against Israel. You can follow him on Twitter@jedbabbin.