Bad ideas can often get accepted long after they were initially rejected. One generation recoils at a proposal. The next generation might cozy up to it. And the one after that might accept it.
Some on the left, including the lame duck President Joe Biden and AOC, want to gut the Supreme Court. They haven’t gotten their way with the Court in recent years, so they want to try and term limit justices out.
Of course, there are three basic branches of the federal government—the legislative, the executive, and the judicial. Now, not pleased with some decisions from the Supreme Court, members of the first two branches are trying to seize and reshape the judicial branch.
They want to propose what Senator Mike Lee, an expert on the U.S. Constitution, calls “nakedly authoritarian…unconstitutional” proposals against the High Court.
They want to impeach justices like Clarence Thomas or Samuel Alito because of their conservative opinions. The left wants to impose term limits on justices. This could undermine the independence of the judges and cause them to base their decisions purely on the shifting winds of politics—not what the Constitution says or the founders’ intent.
For decades, conservatives rightfully complained about decisions from liberal justices that seemed to have no basis in the Constitution.
Here’s an example. Roe v. Wade (1973), the now-defunct holy grail of the left, only cites two parts of the Constitution: the 9th amendment and the 14th amendment. But neither provide any direct or indirect statement along the lines of “the right to abortion” or even “the right of privacy.”
The irony of using the 14th amendment to justify killing preborn babies, which is Roe v. Wade (up to three months) and its companion decision issued the same day, Doe v. Bolton (up to the moment of birth), is that that particular addition to the Constitution actually mentions the right to “life” as an inherent right. The 1973 Court obviously didn’t see that right applying to the unborn.
Since 1973, conservatives have spoken against Roe v. Wade as the quintessential example of “judicial activism”—judges coming up with desired results by twisting the Constitution to their desired end.
I once interviewed the late Henry Hyde, author of the pro-life Hyde Amendment. He spoke of the problem of the justices using the Constitution like “silly putty” to achieve their fore-ordained aim.
But through all the gnashing of teeth against judicial tyranny, conservatives did not advocate changing the court itself—just its occupants.
Conservative scholars are pushing back at these recent proposals to gut the court. Kelly Shackelford is the founder and director of First Liberty, a group that fights on behalf of religious liberty in the courts of the land, including the courts of public opinion.
Shackelford wrote, “Transforming the Supreme Court into another partisan body would destroy the independence of the judiciary and threaten the civil liberties of all Americans. Joe Biden once said that changing the structure of the Court was ‘a bonehead idea’ that would ‘put in question … the independence of the … Supreme Court.’ He was right. The last thing we need in this country right now is a Supreme Court coup that would threaten judicial independence and our democratic republic. This is a radical attempt by a desperate politician.”
Shackelford adds, “Ending life tenure is just the Left’s way to purge conservative justices on the Court. It’s simply court-packing by a different name.”
And a majority of Americans agree, he says: “Polling has revealed that 72 percent of Americans believe that the politicization of the Supreme Court threatens judicial independence and 69 percent do not want Congress taking over and setting rules for judicial ethics.”
One of the brilliant aspects of the founders and the Constitution is the division of power so that no one person or small group of persons could lord it over others.
The framers knew the Bible. They knew world history. They knew man is basically sinful. Therefore, power must be divided.
James Madison, a key architect of the Constitution, warned us in Federalist #47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” [emphasis added]
And Alexander Hamilton wrote in Federalist #78: “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” [emphasis added]
In effect, the judicial branch could say to the other branches, “Hey, stay in your own lane!”
This article was originally published at JerryNewcombe.com.
