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The Imperial Judiciary—And What Congress Can Do About It

Wednesday, January 1, 1997

Under the modern doctrine of judicial review, the federal judiciary can invalidate any state or federal law or policy it considers inconsistent with the U.S. Constitution. This doctrine gives unelected federal judges awesome power. Whenever these judges exceed their constitutional prerogative to interpret law and instead read their personal views and prejudices into the Constitution, the least democratic branch of government becomes its most powerful as well.

America's Founding Fathers created a democratic republic in which elected representatives were to decide the important issues of the day. In their view, the role of the judiciary, although crucial, was to interpret and clarify the law -- not to make law. The Framers recognized the necessity of judicial restraint and the dangers of judicial activism. James Madison wrote in The Federalist Papers that to combine judicial power with executive and legislative authority was "the very definition of tyranny," and Thomas Jefferson believed that allowing only the unelected judiciary to interpret the Constitution would lead to judicial supremacy. "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions," said Jefferson. "It is one which would place us under the despotism of an oligarchy."


The doctrine of judicial review gives unelected federal judges awesome power to usurp the democratic process.


Unfortunately, the federal judiciary has strayed far beyond its proper functions, in many ways validating Jefferson's warnings about judicial power. In no other democracy in the world do unelected judges decide as many vital political issues as they do in America. We will never return the federal government to its proper role in our society until we return the federal judiciary to its proper role in our government.

Supreme Court decisions based on the Constitution cannot be reversed or altered, except by a constitutional amendment. Such decisions are virtually immune from presidential vetoes or congressional legislation. Abraham Lincoln warned of this in his First Inaugural Address when he said:

"[T]he candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal."

When the most important social and moral issues are removed from the democratic process, citizens lose the political experience and moral education that come from resolving difficult issues and reaching a social consensus. President Reagan explained how judicial activism is incompatible with popular government:

"The Founding Fathers were clear on this issue. For them, the question involved in judicial restraint was not -- as it is not -- will we have liberal courts or conservative courts? They knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people?" [Emphasis added.]

Judicial Excesses

When federal judges exceed their proper interpretive role, the result is not only infidelity to the Constitution, but very often poor public policy. Numerous cases illustrate the consequences of judicial activism and the harm it has caused our society. Activist court decisions have undermined nearly every aspect of public policy. Among the most egregious examples:


Federal judges have diverted our civil-rights laws from a color-blind ideal to a complex and unfair system of racial and ethnic preferences.


Allowing racial preferences and quotas. In United Steelworkers of America v. Weber (1979), the Supreme Court held for the first time that the Civil Rights Act of 1964 permits private employers to establish racial preferences and quotas in employment, despite the clear language of the statute: "It shall be an unlawful employment practice for any employer . . . to discriminate against any individual because of his race, color, religion, sex, or national origin." Had the Court decided Weber differently, racial preferences would not exist in the private sector today. The Weber decision is a classic example of how unelected government regulators and federal judges have diverted our civil-rights laws from a color-blind ideal to a complex and unfair system of racial and ethnic preferences and quotas that perpetuate bias and discrimination.

Creating a "right" to public welfare assistance. In Goldberg v. Kelly (1970), the Supreme Court sanctioned the idea that welfare entitlements are a form of "property" under the Fourteenth Amendment. The Court's conclusion: Before a government can terminate benefits on the grounds that the recipient is not eligible, the recipient is entitled to an extensive and costly appeals process akin to a trial. Thanks to the Court, welfare recipients now have a "right" to receive benefits fraudulently throughout lengthy legal proceedings, and never have to reimburse the government if their ineligibility is confirmed. The decision has tied up thousands of welfare workers in judicial hearings and deprived the truly needy of benefits. By 1974, for example, New York City alone needed a staff of 3,000 to conduct Goldberg hearings.

Hampering criminal prosecution. In Mapp v. Ohio (1961), the Supreme Court began a revolution in criminal procedure by requiring state courts to exclude from criminal cases any evidence found during an "unreasonable" search or seizure. In so holding, the Court overruled a previous case, Wolf v. Colorado (1949), which had allowed each state to devise its own methods for deterring unreasonable searches and seizures. The Supreme Court in effect acted like a legislature rather than a judicial body. As a dissenting justice noted, the Mapp decision unjustifiably infringed upon the states' sovereign judicial systems and forced them to adopt a uniform, federal procedural remedy ill-suited to serve states with "their own peculiar problems in criminal law enforcement."

In fact, nothing in the Fourth Amendment or any other provision of the Constitution mentions the exclusion of evidence, nor does the legislative history of the Constitution indicate that the Framers intended to require such exclusion. Instead we ought to explore other means of deterring police misconduct without acquitting criminals, such as permitting civil lawsuits against reckless government officials and enforcing internal police sanctions against offending officers with fines and demotions.

Since Mapp v. Ohio, the exclusionary rule has had a devastating impact on law enforcement in America. One recent study estimated that 150,000 criminal cases, including 30,000 cases of violence, are dropped or dismissed every year because the exclusionary rule excluded valid, probative evidence needed for prosecution.

Lowering hiring standards for the U.S. workforce. In Griggs v. Duke Power Co. (1971), a plaintiff challenged a company's requirement that job applicants possess a high-school diploma and pass a general aptitude test as a condition of employment. The lawsuit argued that because the diploma and test requirements disqualified a disproportionate number of minorities, those requirements were unlawful under the Civil Rights Act of 1964 unless shown to be related to the job in question.

The Court ruled that under the Act, employment requirements that disproportionately exclude minorities must be shown to be related to job performance, and it rejected the employer's argument that the diploma and testing requirements were implemented to improve the overall quality of its work force. Moreover, the Court held that "Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question."

In fact, the Act explicitly authorizes an employer to use aptitude tests like the one challenged in Griggs. This insidious court decision has lowered the quality of the U.S. workforce by making it difficult for employers to require high-school diplomas and other neutral job requirements. It also forced employers to adopt racial quotas in order to avoid the expense of defending hiring practices that happen to produce disparate outcomes for different ethnic groups.

"Discovering" a right to abortion. In Roe v. Wade (1973), the Court considered the constitutionality of a Texas statute that prohibited abortion except to save the life of the mother. Although the Court acknowledged that the Constitution does not explicitly mention a right of privacy, it held that the Constitution protects rights "implicit in the concept of ordered liberty." The Court ruled that "the right of personal privacy includes the abortion decision," and it struck down the Texas statute under the Due Process Clause of the Fourteenth Amendment. The Court then went on, in a blatantly legislative fashion, to proclaim a precise framework limiting the states' ability to regulate abortion procedures.

The dissenting opinion in Roe pointed out that, in order to justify its ruling, the majority had to somehow "find" within the Fourteenth Amendment a right that was unknown to the drafters of the Amendment. When the Fourteenth Amendment was adopted in 1868, there were at least 36 state or territorial laws limiting abortion, and the passage of the Amendment raised no questions at the time about the validity of those laws. "The only conclusion possible from this history," wrote the dissenting justices, "is that the Drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

One of the most pernicious aspects of the Roe decision is that it removed one of the most profound social and moral issues from the democratic process without any constitutional authority. For the first two centuries of America's existence, the abortion issue had been decided by state legislatures, with substantially less violence and conflict than has attended the issue since the Roe decision.

Overturning state referenda. In Romer v. Evans (1996), the U.S. Supreme Court actually negated a direct vote of the people. This case concerned an amendment to the Colorado constitution enacted in 1992 by a statewide referendum. "Amendment 2" prohibited the state or any political subdivisions therein from adopting any policy that grants homosexuals "any minority status, quota preference, protected status, or claim of discrimination." The Court ruled that the amendment was unconstitutional because it did not bear a "rational relationship" to a legitimate government purpose and thus violated the Equal Protection Clause of the Fourteenth Amendment.


The Supreme Court has desecrated the principle of self-government and appointed itself the arbiter of the nation's moral values


The state of Colorado contended that this amendment protected freedom of association, particularly for landlords and employers who have religious objections to homosexuality, and that it only prohibited preferential treatment for homosexuals. But the Court rejected these arguments and offered its own interpretation of what motivated the citizens of Colorado, claiming that "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."

The dissenting opinion argued that Amendment 2 denies equal treatment only in the sense that homosexuals may not obtain "preferential treatment without amending the state constitution." Noting that under Bowers v. Hardwick (1986), states are permitted to outlaw homosexual sodomy, the dissent reasoned that if it is constitutionally permissible for a state to criminalize homosexual conduct, it is surely constitutionally permissible for a state to deny special favor and protection to homosexuals. The Court's decision, the dissent charged, "is an act not of judicial judgment, but of political will."

It is hard not to regard the Romer decision as the pinnacle of judicial arrogance: Six appointed justices struck down a law passed by 54 percent of a state's voters in a direct election, the most democratic of all procedures. In one of the most egregious usurpations of power in constitutional history, the Court not only desecrated the principle of self-government, but appointed itself the moral arbiter of the nation's values.

Turning the Tide

Fortunately, Congress has a number of strategies at its disposal to confine the judiciary to its proper constitutional role:

1. The Senate should use its confirmation authority to block the appointment of activist federal judges.

When a president appoints judges who exceed their constitutional authority and usurp the other branches of government, the Senate can properly restrain the judiciary by carefully exercising its responsibilities under the "advise and consent" clause of Article II, Section 2 of the Constitution.

Normally, the Senate Judiciary Committee conducts a hearing on the president's nominees. Those nominees who are approved by the committee or submitted without recommendation go to the full Senate for a confirmation vote.

Unfortunately, the confirmation process in recent years has been relatively perfunctory. The Senate has been reluctant to closely question a nominee to ascertain the candidate's understanding of the proper role of the judiciary. The Senate committee hearing provides an excellent opportunity to discern a judicial candidate's understanding of a constitutionally limited judiciary. It also provides a public opportunity for judicial watchdog organizations to testify in support of or against a particular nominee.

The Constitution established Senate confirmation to ensure that unqualified nominees were not given lifelong judgeships. In carrying out this important responsibility, senators should ascertain a prospective judge's commitment to a philosophy of judicial restraint and fidelity to the Constitution. In so doing, they should carefully review all the opinions, legal articles, and other materials authored by the candidate, the personal background report prepared by the Federal Bureau of Investigation, and the testimony of judges and other attorneys who have had ample opportunities to view a candidate's work. In the name of efficiency, the full Senate sometimes votes to confirm judicial nominees in bundles. This practice should cease. Senators should vote on each nominee individually, in order to remind the prospective judge and the public of the awesome responsibility of each new member of the judiciary and to hold themselves accountable for every judge they confirm to the federal bench.

2. Congress should strip the American Bar Association of its special role in the judicial selection process.

The American Bar Association (ABA) has shown itself to be a special-interest group, every bit as politicized as the American Civil Liberties Union or the National Rifle Association. In the 104th Congress, for example, the ABA officially supported federal funding for abortion services for the poor, racial and ethnic preferences, and a ban on assault weapons; and it opposed a ban a flag-burning, reform of the exclusionary rule and of death-penalty appeals, and a proposal to restrict AFDC payments for welfare mothers who have additional children. Hence it should be removed from any official role in evaluating judicial nominees. It would still be free to testify before the Senate Judiciary Committee concerning potential judges, but it would not have any special status or authority.

The Senate will always need the impartial assessment of judges and lawyers who have a detailed knowledge of the work and background of a judicial candidate. In place of the ABA, the Senate should appoint a special fact-finding committee in each of the 94 federal judicial districts. These lawyers would be selected for their objectivity, ideological neutrality, and understanding of the constitutional role of the judiciary. They would obtain the detailed information the Senate needs to evaluate a candidate, and would give that information directly to the Judiciary Committee without subjective comments or evaluation.

3. Congress should exercise its power to limit the jurisdiction of the federal courts.

Congress has great control over the jurisdiction of the lower federal courts. Article III, Section 1, of the Constitution provides that "[t]he judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." [Emphasis added.] It is well-established that since Congress has total discretion over whether to create the lower federal courts, it also has great discretion over the jurisdiction of those courts it chooses to create. In fact, Congress has in the past withdrawn jurisdiction from the lower federal courts when it became dissatisfied with their performance or concluded that state courts were the better forum for certain types of cases. The Supreme Court has repeatedly upheld Congress's power to do so.

Congress also has some authority to limit the jurisdiction of the Supreme Court and to regulate its activities. Article III of the Constitution states that the Supreme Court "shall have appellate jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make." [Emphasis added.] Although we recognize that the scope of Congress's power to regulate and restrict the Supreme Court's jurisdiction over particular types of cases is under debate, there is a constitutional basis for this authority.

In the only case that directly addressed this issue, the Supreme Court upheld Congress's power to restrict the Court's appellate jurisdiction. In Ex Parte McCardle (1869), the Court unanimously upheld Congress's power to limit its jurisdiction, stating:

"We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction, the court cannot proceed at all in any case." [Emphasis added.]

Although some respected constitutional scholars argue that Congress cannot restrict the Supreme Court's jurisdiction to the extent that it intrudes upon the Court's "core functions," there is no question that Congress has more authority under the Constitution to act than it has recently exercised. The 104th Congress displayed an encouraging willingness to assert its authority over the jurisdiction of the lower federal courts. For example, the Prison Litigation Reform Act of 1995 reduced the discretion of the federal courts to micromanage state prisons and to force the early release of prisoners. The Act also makes it more difficult for prisoners to file frivolous lawsuits. (An incredible 63,550 prisoner lawsuits were filed in federal court in 1995 alone.) Congress also passed the Effective Death Penalty Act of 1995. This Act limited the power of the federal courts to entertain endless habeas corpus appeals filed by prisoners on death row, significantly expediting the death-penalty process.

Other issues are due for some congressional muscle-flexing to restrain an activist judiciary:


Congress should consider restricting the courts' jurisdiction over school choice, same-sex marriage, and other issues best left to the people.


Private-school choice. Some radical groups like the American Civil Liberties Union argue that the government would violate the First Amendment's Establishment Clause if it gave a tuition voucher to a family who uses it at a religious school. Under current Supreme Court precedents, school vouchers are almost certainly constitutional. Nevertheless, some federal judges have indicated that they would invalidate private-school choice plans under the Establishment Clause. Moreover, if more activist justices are named to the Supreme Court, a liberal majority could crush one of the most promising educational initiatives in recent years by judicial fiat. To ensure that the issue of private-school choice is decided through the democratic process, Congress should consider restricting the Court's jurisdiction over this issue.

Judicial taxation. "Judicial taxation" refers to federal court orders that require a state or local government to make significant expenditures to pay for court-ordered injunctions. For example, one federal judge ordered the state of Missouri to pay for approximately $2.6 billion in capital improvements and other costs to "desegregate" the school districts of St. Louis and Kansas City, which in recent years had lost many white students. To attract white students back into the system, a federal judge required Kansas City to maintain the most lavish schools in the nation, and actually ordered the city to raise property taxes to pay for his court-ordered remedies.

There's a name for tax increases imposed by appointed, life-tenured federal judges: taxation without representation. Under the Constitution, only Congress can lay and collect taxes; our Founding Fathers would be appalled at the thought of federal judges doing so. In Federalist No. 48, James Madison explained that in our democratic system, "the legislative branch alone has access to the pockets of the people." To codify this principle, Congress should consider restricting the federal courts' authority to order any government at any level to raise taxes under any circumstance.

Use of special masters. Federal judges sometimes appoint "special masters" to micromanage prisons, mental hospitals, and school districts. In the past, these special masters have been appointed to carry out the illegitimate excursions of judges into the province of the legislative and executive branches. Moreover, the use of special masters has been a form of taxation, in that state and local governments are required to pay their salaries and expenses -- which have often been extravagant. In some cases, special masters have hired large staffs to help execute the court order. Congress should outlaw special masters; without them, federal judges would be constrained by the limits on their time and resources from managing prisons or other institutions.

Same-sex marriage. No area of the law has been more firmly reserved to the states than domestic relations. Nevertheless, the Court's reasoning in Romer v. Evans suggests the possibility that some federal judges will "discover" a constitutional right to homosexual marriage, and thus remove the issue from the democratic process.

The Hawaii Supreme Court recently indicated that it would soon recognize homosexual marriages, which all other states would then have to recognize under the Full Faith and Credit Clause of the Constitution (Article IV). This possibility motivated Congress to pass the Defense of Marriage Act, which authorized any state to refuse to recognize a same-sex marriage performed in another state. The Act does not, however, prevent the federal judiciary from usurping this issue. Congress should consider going one step further to remove the jurisdiction of the lower federal courts over same-sex marriages to ensure that this cultural issue is decided by the legislative process in each state.

4. The states should press Congress to amend the Constitution in a way that will allow the states to ratify constitutional amendments in the future without the approval of Congress.

One reason judicial activism is so dangerous and undemocratic is that reversing or amending federal court decisions is so difficult. When a decision by the Supreme Court or a lower federal court is based on the Constitution, the decision cannot be reversed or altered except by a constitutional amendment. Such constitutional decisions are immune from presidential vetoes or congressional legislation.


Judges with life tenure show less restraint when their chances of being overruled by constitutional amendment are slight.


The existing means of amending the Constitution, however, are seldom effective in halting judicial activism. The amendment procedure set forth in Article V of the Constitution is difficult and lengthy for good reason: to avoid hasty changes spurred by the passions of the moment. But history has shown that even the most egregious court decisions -- particularly those that affect the balance of power between the national government and the states -- have been impervious to correction by constitutional amendment. One reason for this is that Congress, which must initiate such amendments, is loath to give up federal power.

The amendment procedure of the U.S. Constitution led Lord Bryce to conclude in his 1888 study, The American Commonwealth, that "[t]he Constitution which is the most difficult to change is that of the United States." This difficulty has encouraged judicial activism and allowed the unelected federal courts to "twist and shape" the Constitution, as Jefferson predicted, as an "artist shapes a ball of wax." The reason that the difficult amendment procedure encourages judicial activism is simple: Life-tenured judges are less likely to show restraint when the possibility that their rulings will be rejected is slight.

Consequently, one strategy to rein in the federal judiciary is to revise the amendment procedure in Article V of the Constitution to allow the states to amend the Constitution without Congress's approval and without a constitutional convention.

Here's how it would work: When two-thirds of state legislatures pass resolutions in support of a proposed amendment to the Constitution, Congress would have to submit it to all the states for ratification. The proposal would then become part of the Constitution once the legislatures of three-fourths of the states ratify it. Congress's role would be purely ministerial. This process would give the states equal power with Congress to initiate an amendment and would further check the power of the federal courts and of Congress.

5. Congress should stop the federalization of crime and the expansion of litigation in federal court.

Whenever Congress enacts a new federal criminal statute or a statute creating a cause-of-action in federal court, it enlarges the power and authority of the federal courts and provides more opportunities for judicial activism. At the same time, the federalization of crimes that have traditionally concerned state and local governments upsets the balance between the national government and the states. The following steps can help reduce the federalization of the law and once again restore balance to the federal-state relationship.

Recodify the U.S. Code. In the present federal criminal code, important offenses like treason are commingled with insignificant offenses like the unauthorized interstate transport of water hyacinths. The Federal Courts Study Committee found that the current federal code is "hard to find, hard to understand, redundant, and conflicting." Ideally, Congress would start with a blank slate, recodifying only those offenses that truly belong under federal jurisdiction. Due to the highly political nature of crime, such an undertaking might require the creation of an independent commission, modeled after the recent commission for closing unneeded military bases.

Require a "federalism assessment" for legislation. This idea would require that all federal legislation offer a justification for a national solution to the issue in question, acknowledge any efforts the states have taken to address the problem, explain the legislation's effect on state experimentation, and cite Congress's constitutional authority to enact the proposed legislation.

Create a federalism subcommittee within the judiciary committees of the House and Senate. First proposed by President Reagan's Working Group on Federalism, federalism subcommittees would attempt to ensure compliance with federalism principles in all proposed legislation.

Judicial activism has harmed virtually every aspect of public policy in America. Liberalism has accomplished much of its agenda in the last 30 years not through the electoral process, but instead in the federal courts. Conservatives will never be able to shape public policy until they can curb activist judges. Congress can and should move to do so.