Term-Limit Justices, Let Congress Veto Court Rulings
Posted on December 18, 2006
I thought this piece written by Mark Levin at Human Events might bring up some interesting discussion in the comments.
While I believe the Supreme Court is long overdue for systemic reform, the requirement of amending the Constitution to achieve both term limits and the legislative veto would be a very difficult task. But unless we begin making the case now, explaining the necessity of the amendments to the public, we will never solve this threat to the system and process of government enshrined in the Constitution.
Putting term limits on justices is not a radical idea. It would actually help restore the balance the Constitution envisioned between the three branches of the federal government. With term limits, the Supreme Court would remain an independent body, but they would allow for the replacement of justices on a timely basis, rather than waiting for them to die or set their own retirement date. And if justices are going to use their positions to set policy and, in essence, participate in the political process without the benefit of standing for election, there really is no reason for them to serve for life.
Giving Congress a veto over Supreme Court decisions would also help restore the balance between the court and the legislature. If it took a two-thirds majority vote in both houses to veto a decision, such vetoes would not happen often. But it does allow the people, through their elected branches, to have the last say. For example, I believe the horrendous Kelo v. New London decision, which said local governments can seize private homes and turn them over to private developers for the purpose of raising the tax base, may have garnered the bicameral two-thirds needed for a veto. Were the court to misuse the 14th Amendment to create a right to same-sex marriage, as I suspect it might, that, too, might secure the two-thirds votes necessary for a congressional veto.
There was no greater advocate of representative, constitutional government than Ronald Reagan, and no more outspoken opponent of unbridled judicial activism. If we are to preserve the Constitution as he and the framers understood it, then the Supreme Court must be reigned in through these modest reforms that also respect the independence of the court.
Make sure to read the entire column.
The concept is not really a new idea. Thomas Jefferson had the same fears about the judicial branch.
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy…The Constitution has erected no such single tribunal…knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.†Quote
Jefferson had similar ideas on the solution as well:
“Let the future appointments of judges be for four or six years and renewable by the President and Senate. This will bring their conduct at regular periods under revision and probation, and may keep them in equipoise between the general and special governments. We have erred in this point by copying England, where certainly it is a good thing to have the judges independent of the King. But we have omitted to copy their caution also, which makes a judge removable on the address of both legislative houses.â€ÂQuote
Certainly there would be no problem if judges could be trusted with self-restraint to stay within the role assigned to them. However, too many judges toss aside notions of judicial self-restraint and decide matters just as a legislator would, often even using foreign law to reach their own prejudiced opinions in constitutional matters. There is certainly a problem. Whether there is a solution in term limits, electing judges, or making an easier process for legislators to overturn faulty decisions…a solution needs to be worked on. The problem is past being out of hand. Checks and balances should go both ways. Why should an unelected body be the final word when they step outside the bounds of interpretation and into the realm of writing laws?
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26 Responses to “Term-Limit Justices, Let Congress Veto Court Rulings”
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I don’t see how the proposed congressional veto helps anything. It would encourage more retroactive lawmaking, not less.
Besides, they already have a congressional veto. Witness the Detainee Treatment Act. The judiciary told the president he didn’t have the authority to proceed with his plans. Congress said, “He does now.” Sure enough, he does. There’s your congressional veto, folks.
Jeff, I would appreciate it if you would actually give these ideas some serious thought and not just argue for the sake of arguing. So, you don’t like the veto idea, or you think they already have it? That is only under certain conditions. If a judge, appointed for life, makes an activist decision creating new laws or rights from thin air…out of their imagination or from some foreign law even…what check does Congress have on that? A burdensome, long process if anything.
What are your thoughts on term limits? What do you think of Jefferson’s suggestions? Can we agree there is a lack of checks against the judicial branch and that they have been granted too much power?
Both.
For any ruling, all they have to do is pass legislation that negates the principle part of the ruling. Do you want to overturn Roe v. Wade? Pass an amendment that clarifies the 14th amendment to the point where no court could reasonably construe it to protect abortion.
The only thing this proposal really does is create a backdoor for passing amendments. Amendments are hard to pass for a reason. I’m a lot more worried about a politically motivated congress than I am about idealistic justices.
I’m not entirely opposed to them. I think 6 year, renewable terms would take too much power from the judiciary though. I could go for a 16 year term with a mandatory review at the halfway point. It should take more than a simple majority to remove him though.
I don’t agree with that.
I think any increase in power the judiciary has received is far outstripped by the increase in power enjoyed by the rest of the federal government. I’m all for pulling them all back, but if we’re going to do it one at a time, I definitely wouldn’t start with the judiciary.
Maybe not a simple majority. Perhaps 3/4ths? Something.
And we definitely disagree on what branch has too much power. Most libertarians and liberals seem to love the ideas of Jefferson. They would probably like his ideas on this as well if the Supreme Court’s balance of power were to swing away from the liberal balance.
Sure, you could probably even talk me into 2/3. Just make sure the ruling party can’t install a friendly judiciary whenever it pleases.
I’ll reiterate: I think they all have far too much. We disagree because I don’t believe the judiciary is the catalyst.
How often does congress actually respond to a court ruling? They just demonstrated that they can if they want to. Yet it’s almost always the courts saying “Wait a minute, you guys are going too far.” I think if congress stopped getting involved in every facet of life and if the President stopped using loose interpretations of legislation, you would find that the judiciary would quickly run out of things to do.
Or perhaps if Congress grew a spine and spoke up against some of the judicial branche’s insane rulings more often…
I like the concept of some manner of accountability and review.
Judges despite everyones best intentions are not perfect.
What you interpret as spineless inaction is nothing more than a reflection of the people’s will. The conservatives can’t pass amendments overturning key rulings because the people are split on the issues. When the people are split, the justices get to cast the tie-breaker. It’s just a fact of life. You can’t avoid that unless you want our laws to be so fluid that a simple majority can make major changes.
What are your thoughts on term limits?
I don’t like it. I don’t think it would be a good idea to further politicize a branch that has been the least political of the three. Especially these days, with the political climate we are in.
Can we agree there is a lack of checks against the judicial branch and that they have been granted too much power?
We have a check that would work just as it was intended…impeachment…but like treason (when it really involves treason) Congress doesn’t have the cojones to do what they should.
If Congress had impeached them after Lawrence v. Texas, we wouldn’t have had Kelo.
Or perhaps if Congress grew a spine and spoke up against some of the judicial branche’s insane rulings more often…
That would be a start. Congress has as much authority to interpret the constitution as the SCOTUS does. Possibly more. It’s been awhile since I reviewed it.
What you interpret as spineless inaction is nothing more than a reflection of the people’s will.
The states (people) have made it clear what their opinion is regarding Kelo. SCOTUS usually knows, they just don’t care, if it doesn’t fit their agenda.
Lobo, I should have been more specific. My above commentary doesn’t apply to states’ rights issues. I was referring only to the interplay between federal branches.
I agree that states are woefully powerless these days. I’m not sure what the answer is, but I’m open to investigating ways to allow states to override a court ruling that lacks solid precedent.
“giving Congress a veto over Supreme Court decisions would also help restore the balance between the court and the legislature.†Jay
Congress already has veto over the Supreme Court as all they need to do it impeach the Judges making the majority decision. This takes the House bringing charges by a majority vote while the Senate votes to impeach with a two thirds vote. It is only a Congressional doctrine that prevents impeachment of activist judges and they can change that whenever they desire.
Impeachment is actually easier than overriding a Presidential veto as it requires a two third majority of both houses. Congress need to be pressured to change their doctrine as it interferes with the balance of powers aspect of the U.S. Constitution.
“While I believe the Supreme Court is long overdue for systemic reform, the requirement of amending the Constitution to achieve both term limits and the legislative veto would be a very difficult task.†Jay
I think that putting the Senate back into the hands of state legislators would do a better job of limiting the judges. Our Founders believed that the states needed to check the federal government and that was their way of accomplishing that goal. Term limits is also a good move but I believe that rescinding the Seventeenth Amendment would do a lot better in controlling the federal courts tendency to take power from the state and give it to the federal government.
Congress can also regulate both the jurisdiction of the courts and the courts themselves. Many activist ruling are actually the fault of Congress and/or of the Administration. One example is that the FDA authorized the distribution of hormonal contraceptives a few years prior to the federal judiciary overriding the Comstock laws that forbade the state governments from prohibiting their use.
I would like the federal judiciary to have term limits and be elected by the people. I believe the state legislation should propose candidates for election and I think those from the legal profession make lousy judges. I propose sports judges as they are taught to rule according to the rules while those in the legal profession are taught to use the law to their client’s advantage. The President can still fill any vacancies that happen during a term and Congress can still impeach and regulate the courts. This would all take a constitutional convention or at least the threat of one.
I’m with Mark Levin and Jefferson on this one. It makes real good sense. Judicial legislating their agenda on the bench is upsetting our Constitutional form of checks and balances. It is the legislative branch’s job to legislate, not, the Supreme Court.
“The only thing this proposal really does is create a backdoor for passing amendments.”
Jeff, could you elaborate on what you mean by this?
By the way, term limits on congress is also a great idea. We need fresh blood not stagnant stubborn legislators.
Lobo, I should have been more specific. My above commentary doesn’t apply to states’ rights issues. I was referring only to the interplay between federal branches.
How often does congress actually respond to a court ruling? They just demonstrated that they can if they want to. Yet it’s almost always the courts saying “Wait a minute, you guys are going too far.â€Â
In 1993, Congress passed the Religious Freedom Restoration Act to correct an earlier Supreme Court decision that weakened a long-standing First Amendment protection for religious groups.That Congressional act re-instituted protection declaring that a government entity must not interfere with a religious body unless it had “a compelling state interest†for doing so. However…
When a Catholic church in Boerne, Texas, sought to accommodate its burgeoning membership but was denied a building permit to expand its facilities, the church invoked relief under RFRA, claiming the city had no “compelling state interest†in denying the church expansion. The Court ruled otherwise, striking down Congress’ attempt to protect religious bodies from government intrusion. While most decried this decision for weakening the rights of religious bodies, there was a far greater question at stake.
Congress invoked Section 5 of the Fourteenth Amendment of the Constitution in passing RFRA to protect religious freedoms from further governmental encroachment. Yet even though the Congress had acted on the power explicitly given it in the Constitution, the Court struck down the law, refusing to be corrected by Congress and warning that Congress should not attempt to correct a Court ruling. Significantly, Congress cited the Constitution as its authority for passing RFRA, but the Court did not cite the Constitution as its authority for striking RFRA down. The Court instead pointed to its own previous decisions, thus elevating its rulings higher than the Constitution itself. As it explained, “Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.†The Court then rebuked Congress, warning that its judicial edicts must be treated “with the respect due them.†In short, we the Court demand that you the Congress adhere to our opinions regardless of what the Constitution says.
Now Jeff, the Constitution carries no title but “We the People,†and impeachment removes from office those officials who ignore that standard. The Founders’ intent for impeachment was to protect the fundamental principle of “the consent of the governed.â€Â
If Congress will not exercise the authority and remedy the Constitution provides, new laws will do nothing.
I was referring to the proposed “congressional veto.”
The only time “legislating from the bench” stands up to appeals is when the law is ambiguous and there are no clear precedents. Such was the case with Hamdan v. Rumsfeld. What rights does Mr. Hamdan have? Dunno, there isn’t a clear precedent and congress hasn’t spoken. SCOTUS weighed everything and issued a ruling.
Congress and the President were not happy with the effect of the ruling, so they clarified their intentions by passing the Military Commissions Act of 2006 (sorry, I mistakenly referred to the Detainee Treatment Act in my first comment). There’s your veto.
Now it was pretty easy to do in that case, because the ruling was based on the lack of authorization rather than a conflict with a constitutional rights. When the constitution is at the heart of the matter, congress is less likely to override the ruling because amendments are very hard to pass. This is exactly how it should be.
Jeff M.,
Even Liberals find the judges activist at times. One case is with the hurricane insurance. The judge decided hurricane only meant wind damage even though hurricanes are known to always cause a damaging wave to come ashore.
I am not debating the damage cause by the levy breach in New Orleans which was more the fault of the Corps of Engineers than of Katrina. If the government has insured the levies against hurricane damage then that would be another matter.
No, they only said congress didn’t have the authority to apply it to the states. They subsequently ruled against the federal government, citing RFRA, in Gonzales v. O Centro EspÃÂrita Beneficente União do Vegetal
The ruling left states free to enact their own equivalent to the RFRA. Isn’t that the essence of states’ rights?
That is certainly true. It just seems that congress was less dissatisfied with the ruling than you are.
No, they only said congress didn’t have the authority to apply it to the states.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
It was the “Religious Freedom Restoration Act”…That Congressional act re-instituted protection…
Furthermore, the Constitution clearly places many of the operations of the Judiciary under the oversight of Congress – a power not granted reciprocally to the Judiciary. This is made clear in the Federalist Papers , which confirm that subjugating the Judiciary to Congress was deliberate and intentional. Federalist #51 declares:
The legislative authority necessarily predominates.
Federalist #78 then proclaims:
The Judiciary is beyond comparison the weakest of the three departments of power.
Also, Federalist #49 declares that Congress – not the Court – is “the confidential guardians of [the people's] rights and liberties.†Why? Because the Legislature – not the unelected judiciary – is closest to the people and most responsive to them.
Well, putting term limits on judges would directly convene Article III. If we complain about justices contravening the Constitution, it doesn’t make sense to contravene the Constitution in order to “fix” the problem. It would just politicize the bench, anyway. We need to get people to understand the harm in legislating from the bench and we need them to elect people who will appoint non-activist judges.
A Congressional Veto of the Supreme Court would be a huge separation of powers problem. One of the Supreme Court’s biggest jobs is to invalidate Congressional legislation that is unconstitutional. What good would that do if Congress could veto their ruling?
The bench is already politicized and what we view as non-activist judges, the left fight tooth and nail as “right wing” judges that they think will “set back the clock” on civil liberties, etc… They fear non-activist judges will jeapordize the ‘advances’ they have made with activist judges. I don’t think it could get any more politicized than it already is.
Jeff,
I fail to see where setting term limits on justices would create any back door for passing amendments. They would remain needing a two thirds referendum.
They wouldn’t. Term limits are a separate issue that I don’t oppose. See comments 3 and 5.
The “back door” comes from the “congressional veto.” It would give them the ability to weigh in on a constitutional matter with a 2/3 vote that would effectively alter the constitution. Currently they require a 3/4 vote plus subsequent ratification by 3/4 of the states in order to alter the constitution. Thus the “congressional veto” would lower the bar substantially.
But it would still be as difficult as any amendment, and would restore checks and balances that activist judges who have legislated (not their lane in the road) from the bench have upset.
In this day and age we need protection from these judges who want to impose their views on our nation, and sometimes even consult world opinion and precedence. Term limits would help make this illegal judicial action a more difficult proposition to carry out and the congressional veto would help to ensure that their day of legislating from the bench is over once and for all.
I am for that 100 percent.
How do you figure? 2/3 is significantly less than 3/4, never mind the fact that they wouldn’t have to go through that messy ratification process.
What are you talking about? Are you still trying to posit that judicial term limits would somehow tip the scales in Congress’ favor?
Remember that both Congress and the justices in this proposal would be under the scope of “the people” for their actions. Not a bad idea at all.