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U.S. Supreme Court Justice John Roberts recently weighed in on the controversy surrounding federal judges constraining Trump administration actions, claiming the role of judges has been “settled” for 200 years. “Squelched” might be more apt. Far from settled, the role of judges has been controversial since our nation’s founding.
Joseph Story, a U.S. Supreme Court justice from 1811 to 1845, authored “Commentaries on the Constitution of the United States” in 1833, a seminal work on constitutional interpretation. He is often called the “original commentator” on the U.S. Constitution and served with Chief Justice John Marshall.
“In examining the parliamentary history of impeachments, it will be found, that many offenses, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy. Thus, lord chancellors, and judges, and other magistrates, have not only been impeached for bribery, and acting grossly contrary to the duties of their office; but for misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power,” Story wrote.
Story suggests that judges could be impeached for “unconstitutional opinions” or actions that undermine the constitutional order. True, Story ties impeachment to significant breaches of public trust or duty, not merely judicial errors or rulings Congress or a president dislikes. But he emphasizes that impeachment is a political process, not a judicial review of court decisions, and cites historical examples like bribery or subversion of fundamental laws. To that we could add overreaches of authority, a boundary set by Congress under its power to define the jurisdiction of “inferior courts” below the Supreme Court.
Story further writes:
“It has not conferred upon [judges] any inviolability, or irresponsibility for an abuse of their authority. On the contrary for any corrupt violation or omission of the high trusts confided to the judges, they are liable to be impeached, and upon conviction removed from office.”
“The Federalist Papers,” published in 1788 to advocate ratification of the U.S. Constitution, echo this. In Federalist No. 78, written by Alexander Hamilton, he portrays the judiciary as a vital, independent guardian of the Constitution, designed to protect liberty and maintain the balance of power
without posing a threat
to the people.
In unpacking that definition, Hamilton describes the judiciary as the “least dangerous” branch of government. That’s because it lacks the “sword” (executive enforcement power) and the “purse” (legislative control of funds), relying instead on judgment and the cooperation of other branches to enforce its rulings. This weakness, he argues, makes judicial independence essential, as it has no means to oppress the people directly.
In other words, its only power is persuasion. Judicial autocracy is not in the Court’s toolbox.
Hamilton further insists that the judiciary’s power is limited by the impeachment process for misconduct.
These observations are a far cry from today’s district court rulings imposing nationwide injunctions against the policies of a duly elected president administering a complex, convoluted, confusing and sometimes contradictory set of laws, regulations and executive orders. Judicial restraint feels absent; persuasion has morphed into fiat.
Efforts by the U.S. House of Representatives to both narrow jurisdiction or impeach imperial judges would be a welcome check and balance on the judiciary.
Americans are increasingly skeptical of all institutions, including the judicial branch that fellow Hoosier Chief Justice Roberts oversees for the nation. The loss of trust and calls for limits on judicial activism are not a sign of a settled consensus on these important questions. Rather, they reflect a yearning to reclaim and honor the founding principles the courts have been drifting away from
for decades.•
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Smith is chairman of the Indiana Family Institute and author of “Deicide: Why Eliminating The Deity is Destroying America.” Send comments to [email protected].
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