Posted July 7, 2005

By M. Roberts

  Because of the two recent Supreme Court decisions regarding displays of the Ten Commandments, the issue of judicial activism has once again returned to prominence in the national debate. The blatantly contradictory decisions could hardly have made it more difficult to discern the legality of public religious displays. According to Van Orden v. Perry, the Ten Commandments are legal at the Texas state capitol because, according to swing vote Justice Breyer, they were adequately balanced by secular displays. However, it appears that the posting of the Ten Commandments in a Kentucky courthouse was a little too religious for the Court because it was deemed illegal in McCreary County v. ACLU.  Maybe the Court would be so kind as to give the nation an idea of what could be considered a “legal” ratio of religious to secular items for future displays. As demonstrated in a previous article, the proper interpretation of the First Amendment really does come down to one question: Does the religious expression in question represent an establishment of a national church that receives direct government support and compels all citizens to be adherents? If the answer is “no”, then there is no violation of the Establishment Clause. Historical evidence abundantly supports this, but the modern Court has shown itself to not be interested in history. The Court has continued to show an historically unjustified and increasingly negative bias against Christian faith over the last five decades, and church/state jurisprudence – as confused as it is – has increasingly reflected that bias.

   Because the Court has radically departed from the original meaning of the First Amendment, it must be relying on another, wholly inappropriate, source for its decisions: the personal biases of the judges. When a judge substitutes his personal bias for the written law, he makes law and usurps the authority of Congress, the only authorized lawmaking branch of the government. And because a judge is appointed instead of elected, the people have no recourse against his bad decisions, which have the force of law. If the people do not have the power to decide on the laws under which they live, then it cannot be said that America truly is a republic in which the authority of the government is derived from the people. Activist judges - those that substitute their personal opinions for the written law - are a serious danger to popular authority. If future generations are to be guaranteed the liberties Americans now enjoy, then judicial activism is a problem that needs to be dealt with.

   Fortunately, Congress has begun to take action to curb the abuses of the judiciary by limiting the jurisdiction of the courts. This authority, granted to Congress under Article III, Section 2 of the Constitution, involves prohibiting the courts from hearing certain types of cases. By doing this, Congress prevents the courts from ruling on certain issues and doing more damage to the Constitution in areas related to those issues. The latest effort currently pending in both houses of Congress is the Constitution Restoration Act of 2005, which will strip from the courts the ability to rule on issues related to the public acknowledgment of God. This legislation is a valiant effort, but limiting jurisdiction is not the ideal solution to the judicial activism problem for several reasons:

1. Limiting jurisdiction is a reactive approach, not a proactive one. The damage is done to the Constitution long before Congress is able to even address the problem.

2. Judicial activism is occurring over a larger range of issues. Congress is already overburdened and cannot hope to keep up with an increase in the need to limit the authority of the courts on various issues.

3. Limiting jurisdiction is impractical in many situations. Some issues are very complex and it can be difficult to design legislation that will limit enough authority to prevent abuse while still allowing the courts to properly do their jobs.

4. Limiting jurisdiction is just a “band-aid” solution that does not solve the problem of judicial activism. Congress can prevent the courts from ruling on certain issues, but activist judges will still remain on the bench.

   The reality is that Congress does not even need to pass additional laws to curb the abuse of activist judges because Article II, Section 4 of the Constitution already provides a solution: impeachment. Many commentators argue that impeachment is only justified by the Constitution for blatant criminal acts, but according to early Supreme Court Justice Joseph Story, impeachable offenses can include more than just “crimes of a strictly legal character”. Such offenses can include crimes “of a political character” that may arise from “personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.” ¹ A judge who chooses to substitute his own will in place of the written law is not only violating his oath to uphold the Constitution, but is also usurping the authority of the people to rule themselves via their elected representatives. This certainly would qualify as a crime of a “political character”.

   Because Congress is vested with the power of disciplining the crimes and abuses of judges, it is their duty to do so. The abuses and crimes of judges are abuses and crimes committed against the people. Any failure of Congress to discipline abusive judges is a failure to meet its constitutional obligation to act as a "check" on the runaway power of the judiciary. The current strategy to limit the jurisdiction of the courts is certainly a welcome step in the right direction, but it cannot be considered a final solution. The only effective solution, and one that will send a powerful message to other would-be judicial activists, is the public disgrace of impeachment.

Read the opinions for Van Orden v. Perry here.

Read the opinions for McCreary County v. ACLU here.