Power of the Courts

It looks like a large number of Republican presidential candidates are considering reigning in the judicial branch's power. Some want to dismantle the 9th circuit federal court of appeals because it's a "consistently radical" court. Some want to limit the types of cases federal courts can hear, especially regarding same-sex marriage - because if a state legislature infringes on personal liberty the federal courts apparently shouldn't have the power to adhere to the constitution. Some want term limits for Supreme Court justices. And, most startling, some want Congress to have the power to overturn a court's decision striking down legislation as unconstitutional.

As if the federal courts weren't conservative enough to satisfy them.

It's strange to me that Republicans used to be the party in favor of small government, while now they only seem to want small government where it benefits them most. It's well known that under Reagan the US government grew tremendously, largely because of military spending. As Occupy Wall Street protestors are quick to point out, the government spends obscene amounts of money murdering people in war and destabilizing governments abroad (not making us safer in fact) while trying to convince us that there's no money to pay teachers or police or firefighters, or even to prosecute domestic abusers. Spending so much money that there's nothing left - that doesn't sound like small government to me. And while one right-wing candidates is trying to cut just about everything besides the military, including the education department (hint: it's Ron Paul) and others are offering to lower taxes thinking that would somehow make the money - not so sure how this works - to cover the monstrous military budget (hint: it's the remainder of the candidates), none accept that these solutions will do nothing to affect the military, one of the largest parts of US government. If Republicans really believed in small government, I think we'd see more pacifists among them. The military uses about 2 billion dollars each day.

And now we see another example of Republicans in favor of big government. In the quest to purge the courts of "activist judges" Republicans want to move a sizable amount of judicial power to Congress and state legislatures. This dangerous idea would remove a vital check and balance from the operation of the federal government and, by weakening the courts, allow the other two branches to abuse authority. Imagine if the senate could overturn a court's ruling! You'd think Republicans would understand the value of the courts' power because they're using it as I write this to try and pick apart Obama's health care initiative.

Now, Constitutionally the federal courts don't have much power. Judicial review is not in the constitution but an invention of the Supreme Court's in 1803, led by the first Chief Justice, John Marshall. Marbury v. Madison was in 1803! Framers of the original Constitution were alive to see it. And judicial review has been an important element of American history ever since (thank you, Brown v. Board of Education!). In fact, it has been suggested that, despite not being in the Constitution, judicial review was one of the intents of the Constitution drafters. Still, the Supreme Court had no official power - Andrew Jackson famously said of one Supreme Court decision he found unfavorable, "Mr. [John] Marshall has made his decision. Now let him enforce it." The result was the Trail of Tears, a telling example of what happens when the rest of the federal government ignores the court.

There's a good reason the power of judicial review has remained in US government for over 200 years despite not being explicitly written in the Constitution: it helps our government work and keeps other branches from becoming too powerful. And yet conservatives who wish to restrict this and other examples of court power "don’t think it’s an anticourt movement. It’s a purifying of the court — trying to return it to where it should be" (Marjorie Dannenfelser, the president of the Susan B. Anthony List, quoted in the New York Times on October 23). It's not a purification - it's a diminishing until there are only two branches of government left and no one keeping them true to the Constitution except a couple lonely judges talking to themselves.

And yes, I acknowledge I don't like the direction the federal courts have been taking in the last decade, very conservative. But that's the beauty of it - the courts are meant to be independent of what people like me think (unlike campaigning politicians who should - should - have to answer to the public every day). They aren't held accountable for the changing whims and fads going around the political sphere. They have one master - the Constitution. And these frustrated Republican candidates are steaming because they can't make the courts dance under their fingertips. FDR had a similar confrontation with the Supreme Court, regarding his New Deal legislation, which did not bode well for him. I hope these Republican candidates come under the same kind of difficulties in politics as a result.

Last thing: I never have been able to say this before in my life, so I'm happy to announce that I agree with Mitt Romney on this issue! When asked about a possible confrontation with the court about abortion, he said, "I’m not looking to create a constitutional crisis" (New York Times again). It's not worth it to clash with the courts in order to force your little fundamentalist project into law, guys! You'll do a lot more damage that you'd realize! If the Supreme Court believes your ideologies shouldn't become law, then they probably shouldn't! That's what the courts are for - protecting us from people like you!