Sunday July 21st 2024


The Founders intended the judiciary to be the weakest branch of
government, but activist judges have rewritten the Constitution and
made a power grab that threatens our democracy

You hear a lot about “activist judges” these days, as members of the judiciary are coming under increasing attack from all sides. Conservatives denounce them for supposedly making liberal decisions
that run contrary to widely accepted concepts of morality, while liberals, on the other hand, decry decisions from the courts that erode personal freedoms. Regardless of your political perspective, there’s no denying that during the last 50 years, the U.S. judiciary has been moving inexorably toward supremacy over the other two branches of government.

Without any Constitutional mandate, judges have asserted broad influence over political, social, and economic policy. They have banned the public recognition of God, redefined marriage, undermined national sovereignty, released a flood of pornography, interfered in elections, turned violent criminals loose and undermined property rights.

Despite the outward appearance of deliberation, what we witness now as an ongoing feature of the conduct of the judiciary at every level amounts to a judicial riot, in which judges and justices take it upon themselves to disregard the prerogatives of the other branches of government in order to assert an exclusive and some say tyrannical control of public standards and conduct.

They have done all this while insulating themselves from accountability, under the guise of protecting judicial “independence,” even when they commit acts while on the bench which are improper or illegal.

Clearly, that is not what the Founding Fathers intended. The Constitution and the important Federalist Papers show that the legislative branch — elected by the people — was to be the strongest and the judiciary to be the weakest “department of power.” But it hasn’t turned out that way.

Historian David Barton says that “The ‘separation of powers’ between the branches was probably the single feature which contributed most to America becoming the world’s longest ongoing Constitutional republic.

“However,” Barton observes, “much of the original plan of Constitutional checks and balances has been set aside in recent years. The result is that one branch — the judiciary — now regularly dominates
the other two.”

This, despite the fact that the Founders, and the philosophers such as Montesquieu from whom they drew inspiration, presented separation as a substantive requirement of free government.

Under our system, no one of the branches of government can have supreme and exclusive decision-making authority, because no one branch can, by itself, safely be allowed to exercise the whole power of government in any circumstance. The legislature makes the laws, but is powerless to execute them. The judiciary can decide cases in light of the law, but has no authority either to execute decisions once taken, or control the content of the law. The executive has the exclusive power of direct action, but no lawful authority to act apart from the provisions of the laws and the Constitution, or the specific judgments of the judiciary.

None of the branches can effectively operate without the acquiescence or co-operation of at least one of the others. No one of the branches can sustain its authority when faced with the united opposition of the remaining branches. In other words, if two branches agree, the third is to yield. This aspect of the U.S. Constitution reflects the essence of law itself.

And yet time and time again in recent years, judges at every level have flagrantly disregarded the will of the executive and legislative branches, as in the recent Terry Schiavo case. In so doing, critics say, judges are rewriting the Constitution, ignoring its original meaning and fulfilling Thomas Jefferson’s worry that the Constitution may become “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.”

This usurpation is robbing Americans of the power to govern themselves.

“The courts are involved in everything,” says Mark Levin, whose new book “Men in Black: How the Supreme Court Is Destroying America” became an instant best seller. “You have one branch of government that’s entirely unaccountable.”

Some examples of judiciary tyranny

Courthouses are built with an imposing facade, with the words chiseled in stone, “We who labor here seek only the truth.” As Americans, we proudly believe that the United States is a country of laws, with the best legal system in the world, protected by a Constitution guaranteeing that no one shall be deprived of life, liberty and property without due process of law. Unfortunately, many who have had contact with the court system have come away shell shocked. It is a hard lesson to learn, that it has become discretionary with many judges whether they correctly apply the law, state the facts, and allow all evidence to be presented.

Judges in some civil cases have even colluded with litigious lawyers who are in pursuit of big money. In many types of litigation the plaintiff can obtain from a judge a pre-judgment writ of attachment, or a restraining order, or secure the appointment of a receiver for property, effectively freezing all of the defendant’s funds pending the outcome of the case. This is often the single most potent weapon available to the plaintiff. Without access to money to meet business and personal expenses the defendant will not be able to survive financially during the lawsuit. The tactic will usually force a defendant to enter into an unfavorable set- tlement regardless of the merits of his or her defense. Critics say this is akin to judges turning the civil justice system into legalized extortion.

Certainly, the proper functioning of the rule of law is of immense importance in any democracy. How the law is developed and applied defines our individual liberties, protects or limits our political freedom, influences the moral tenor of our society, and shapes the character of our nation.

Legislatures, elected by the people, write laws, and the executive branch of government (headed by an elected official) is responsible for enforcing them. Activist judges effectively take away the right to affect policy by your vote.

Consider these recent examples:

•A state judge struck down California’s Prop. 22 (enacted in 2000) declaring that marriage is only between a man and a woman. That judge unilaterally took the definition of marriage out of the hands of the people and substituted his own — as did judges in Hawaii, Vermont, and Massachusetts.

•In Kansas, the legislature recently passed a death penalty statute at the behest of the people but the state Supreme Court struck it down, chiding both the legislature and the people. And despite the Constitutional requirement that all spending originate and reside solely in the legislature, the court ordered additional spending on education, in essence meaning the court has taken control of educational funding decisions.

•In Nevada, even though the state Constitution requires a two-thirds majority of the legislature to increase taxes, its Supreme Court ordered that clause to be ignored and instead directed a tax increase to boost spending. Unbelievably, the state court ruled that part of the state constitution was unconstitutional.

•U.s. District Judge Norma Shapiro ruled that Philadelphia’s jails were too full and started releasing more than 600 convicts per week back onto the streets. Dozens of them killed, and hundreds raped and assaulted all over again.

• U.s. Judge Thomas Hogan threatened to jail a New York Times reporter who refused to reveal a confidential source. The judge did so even though the journalist was not accused of a crime and never ended up writing her story. Thus press freedom has been limited in ways that will have a chilling effect and may damage the free flow of information that is so necessary in a democratic society.

There are other idiotic verdicts

A judge presiding in a divorce hearing in Kentucky recently gave custody of two small children to their mother even though the mother admitted to the judge that they were all living up in Ohio with her father, who had already pled guilty to child molestation. There was no reason for the judge not to grant custody to the childrens’ father.
Their dad is fighting to get custody, but in the meantime he is powerless to prevent his kids from living with a convicted sex offender. Then there was the strange ruling by Judge Paul Bastine of the Spokane County Superior court in the divorce case of Shawwna Hughes.

The facts themselves seem simple enough: husband beats wife; she leaves him; he’s convicted; she files for divorce and subsequently becomes pregnant by the new man in her life. But in his zeal to assure that the child is not born ‘illegitimate’ (notwithstanding the question of who even talks like that anymore), Judge Bastine refused to grant the divorce. This will make the man that beat her the legal father of the child, even though Ms. Hughes was impregnated by a different man. The net effect of the judge’s ruling is to create a situation where, if something bad were to happen to the mother after the child’s birth, her all-but-former husband who criminally beat her will be the legal guardian of the child she created with another man. It would be hard to imagine a circumstance less likely to create a nurturing environment or a child. Judge Bastine speaks of the “rights of the child” while preventing the mother from getting the divorce she needs to be able to marry the child’s actual father.

These sorts of rulings, combined with judicial activism, have prompted a backlash from both conservatives and liberals, to say nothing of the animosity people feel toward the courts. New efforts to curb judicial power have reached fever pitch.

The u.s. House Working Group on Judicial Accountability, a dozen-member committee that meets monthly, has discussed stripping the federal courts of their jurisdiction on sensitive matters like the Pledge of Allegiance and Ten Commandments. It may sound extreme, but supporters say it’s Constitutional: Article III gives Congress power to limit the courts.

“There’s a tradition of Congress respecting the courts’ authority that is in jeopardy right now,” says Indiana University law professor Charles Geyh, author of the upcoming book “When Courts and Congress Collide.”

As syndicated columnist Thomas Sowell writes, “The issue of judicial activism is not just an issue of the moment. It is an enduring issue of great moment because it means the erosion of the American people’s Constitutional right to govern themselves. If activist judges are allowed to continue to become increasingly our real rulers, what are elections for? Just to provide jobs for politicians?”

Sowell observes that, “Public acceptance of judicial coups has only led to increasing audacity in words and deeds by activist judges.” He says that “judges can treat the Constitution as simply a grant of power to act as philosopher kings and respond to whatever constituency they prefer to the voting public. That is lawless law.”

One of Alexander Hamilton’s arguments for the new Constitution in the 1700s was that the judiciary would be the “weakest” branch of government. By 1996, however, Presidential candidate Bob Dole said in a speech that federal judges are a President’s “most profound legacy.”

In two centuries, the weakest branch has become a most profound legacy because judges have taken from the people control of the most significant issues that affect our culture, communities and families.

Most Americans, however, are not alarmed by this loss of liberty because they do not understand the Constitution or the American system of government. The National Constitution Center recently found that 41% of Americans do not know the number of branches in the federal government, and one-quarter cannot identify a single right guaranteed by the First Amendment. While only 35% of teenagers know the first three words of the Constitution, 59% can name the Three Stooges.

This ignorance shields activist judges from scrutiny and criticism even as their decisions have devastating consequences.

Judges as demigods

Judges are accorded great latitude in rendering their decisions, the presumption being they will impartially and objectively apply the law. But what if a judge is dishonest, corrupt, myopic, incompetent or any combination thereof? In many cases, the fraternity of his fellow judges will protect him or her and allow ill-conceived rulings to stand. There is a continuing trend in appellate review to apply the cloak of judicial discretion to approve lower court decisions riddled with errors and gross misjudgments.

Very few practicing lawyers are willing or able to expose bad judges publicly, because they are at great risk when they must later appear again before the judge. Disclosure of rotten judicial apples offends and embarrasses the entire judiciary. When a lawyer, in diligent pursuit of his client’s interests, dares stand up to a bad judge, the “system” locks arms, and seeks to punish or suppress the iconoclastic lawyer. The system’s resistance to admitting the existence of a bad judge can be astounding.

For instance, in a bizarre case in Oklahoma City, Judge Donald Thompson was accused of repeatedly masturbating with a penis pump under his robe during trials. In a petition to remove him from office state officials charged he also shaved his crotch with a disposable razor and used lotion under his robe in view of his female court reporter.

The 58-year-old married father of three grown children denied the allegations, even though police collected carpet samples, Thompson’s robes and the chair from behind the bench, and found semen, according to court records.

This behavior is alleged to have been going on for years, yet no one had the nerve to challenge him. Thompson’s court reporter, Lisa Foster, told authorities that she saw him use the pump at least “15 to 20 times” during trials. She said the first time in court was in 2000, but she did not tell authorities. “I didn’t want to be found dead in a ditch somewhere,” she told the Associated Press.

Foster told investigators she saw Thompson use the device almost daily during the August 2003 murder trial of Kevin Vomberg, a man accused of shaking a toddler to death. The case ended in a hung jury. The whooshing sound of the mechanical pump could be heard on Foster’s audiotape of the trial.

Foster and a bailiff were fired by Thompson after they spoke out.

Jim Wall, police chief in the small town of Sapulpa, said he had heard rumors of the judge’s behind-the-bench activities for about a month, but added: “You’ve got the most powerful man in Creek County, and I think a lot of people were intimidated by him.” Since the disclosures, a long list of cases heard by the judge could potentially be overturned, and guilty verdicts set aside.

The founders limited judiciary immunity

In jurisdictions across the country, complaints are heard about judges and magistrates that terrorize courtrooms, impair the functioning of the legal system, and undermine public confidence in the law. Although they obviously should not remain in office, many retain their positions even after their shortcomings are brought to light.

Generally, judges are immune from suit for judicial acts within or in excess of their jurisdiction even if those acts have been done maliciously or corruptly, the only exception being for acts done in the clear absence of all jurisdiction.

mlIn the Terri Schiavo case, a mere circuit court judge, George Greer, and higher courts who sustained him, refused to examine compelling new evidence, thumbing their noses at the President and Congress. Greer even quashed Congress-ional subpoenas, thus acting in contempt of Congress and in violation of the Supremacy Clause of the U.S. Constitution which provides that everyone, including Judge Greer, must follow federal law in the face of conflicting state law.

The problem is, members of the legislative and executive branches apparently lack the courage to stand up to judges who exceed their authority.

Members of the judiciary have successfully insulated themselves from accountability. In a federal case known as Ashelman v. Pope, the court wrote: “Judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities... Judicial immunity applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff... Such immunity applies even if it leaves the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” Even “a conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges and prosecutors.”

Minnesota attorney Dale Nathan says, “Judges have made themselves dictators who can do what they please without fear of paying for the damage or hurt they cause. Is this good for society?,” he asks. “Should any person have such power? Is it really necessary for judges to have absolute complete immunity even if they intentionally and wrongfully damage or hurt people in order to get ‘independent and disinterested’ decisions?”

In one famous case, Stump v. Sparkman, a judge wrongfully ordered that a 15-year old girl be secretly sterilized (she was told her appendix was being removed) and the u.s. Supreme Court decided he could not be held liable. According to the Ashelman case the reason judges must have total, absolute immunity regardless of what they do is “to ensure independent and disinterested judicial decisionmaking.”

Today, the term “independent” as applied to the judiciary has largely become a euphemism for “unaccountable”; and not surprisingly, many judges feel free to advance personal agendas.

But Thomas Jefferson insisted that no official was to be so “independent” as to be beyond the reach of the people.

And when some clamored that the judiciary should be “independent,” Judge and u.s. Rep. Joseph Nicholson (1770-1817) forcefully reminded them:

“By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for and they will require nothing more, for your government becomes a despotism and they become your rulers.” The notion of independence for the judiciary was repugnant to the Framers of American government — as confirmed by Constitution signer John Dick-inson, who wrote:

“What innumerable acts of injustice may be committed, and how fatally may the principles of liberty be sapped, by a succession of judges utterly independent of the people?”

Insulating judges from accountability is not rooted in law. It has simply become a custom where judges grant immunity to each other. The Constitution originally organized the judiciary in a manner providing for appointed judges, serving for the duration of “good behavior” (Art. III, Sec. 1, Par. 1). That appointed system performed admirably while a common value system was embraced by the nation. (For example, even though Declaration signers Benjamin Franklin and the Rev. Dr. John Witherspoon held divergent religious views, there were few differences in their governmental philosophy or approach to common cultural values.) The success of the appointed system was further enhanced by the fact that the judiciary did not view itself as a super-legislature; policy-making was anathema to that branch, and it was extremely unusual for the judiciary to strike down any act of the legislature.

“Most judges today no longer embrace this view,” notes David Barton. “Consequently, state policies on issues from education to criminal justice, from religious expressions to moral legislation, from financing to health now stem more frequently from judicial decisions than legislative acts. In fact, in recent years, even the federal court has described itself as ‘a super board of education for every school district in the nation,’ ‘a national theology board,’ and amateur psychologists on a ‘psycho-journey.’ Judges now endorse the declaration of Supreme Court Justice Benjamin Cardozo that ‘I take judge-made law as one of the existing realities of life.’”

As a result, there are now two constitutions: the ratified Constitution with its explicitly written language, and the unratified living constitution that evolves from decision to decision (or, as explained by Supreme Court Chief Justice Charles Evans Hughes: “We are under a Constitution — but the Constitution is what the judges say it is.” And unfortunately, just as there are now two constitutions, there are also now two public policy-making bodies: the elected legislature and the appointed judiciary.

Politics and the judiciary

Judicial activism is nothing new, of course. The 1857 Dred Scott case, which struck down a ban on slavery in the territories, was a case of judicial activism. When Chief Justice Roger Taney said that a black man “had no rights which the white man was bound to respect” in the Dred Scott decision, he was turning his own personal opinion into the law of the land. As dissenting justices in that case pointed out, free blacks had exercised legal rights, including the right to vote, even before the Constitution was written, as well as afterwards. Taney was making law, not following law.

In the first part of the 20th century, the Supreme Court was tossing worker protections.

The trend took off with the federal courts’ role in desegregation, starting with the 1954 Brown vs. Topeka Board of Education decision. Desegregation and civil rights gained acceptance, giving judges a reputation in many quarters for doing what politicians lack the will to do, said University of Colorado law professor Robert Nagel. But he said rulings like those on abortion and banning school prayer inspired sustained bitterness against the courts from conservatives.

“The very institution that was on the right side of racial justice in Brown vs. Board was on the wrong side of Dred Scott vs. Sanford,” said Princeton law professor Robert George. “The power to do good is also the power to do evil.”

Nowadays, the “activist” label is hung on socially liberal decisions. A core complaint of many American conservatives is that judges and not elected representatives have been making laws, not just interpreting them. But it cuts both ways. The attacks on so-called “liberal judges” can backfire, because in reality the federal judiciary so despised by conservatives was largely selected by Republican Presidents. In fact, the GOP controls ten of the 13 appeals courts. Six out of the seven judges on the Massachusetts Supreme Court (that handed down a liberal ruling on gay marriage) were appointed by Republican governors. Anthony Kennedy, Sandra Day O’Connor, and David Souter, all ap-pointed by George h.w. Bush or conservative hero Ronald Reagan, have routinely upheld abortion laws, and all voted in the majority on Lawrence vs. Texas (which held that sodomy laws are unconstitutional).

The Supreme Court’s conservative majority regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act. The court has even established a bizarre series of hoops Congress must jump through to pass a law protecting Americans’ 14th Amendment equal-protection rights.

Nebraska Judge Joseph Bataillon, who recently struck down that state’s ban on same-sex marriage, is a conservative. And the Florida magistrate who rebuffed attempts by Congress and the President to intervene in the Terry Schiavo case, Judge George Greer, is a right-wing conservative, as are a majority of the judges at the appellate level who sided with him.

Justice Anton Scalia, who is often hailed as one who adheres strictly to the Constitution, has been activist as well. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the “takings clause” to block the government from regulating their property.

Certainly conservative jurists have developed their own brand of activism, a phenomenon that reached its zenith when the Supreme Court stopped the Florida vote counting and handed the 2000 Presidential election to Bush.

What can be done about judges?

In the year 1800 every voter understood that the people we elect are supposed to make the judges behave. The public backlash against the judges’ misbehavior even helped Thomas Jefferson become President.

The voters of today must re-learn that members of Congress and the state legislators have statuatory power to restrain judicial excess, if they will use it.

Congress can’t lower judges’ salaries or fire them — provisions tucked into the Constitution by the Framers, who watch-ed judges serve at the whim of King George iii. But lawmakers can eliminate their positions altogether.

And they can impeach them. Originally, every appointed judge was made accountable to the people through im-peachment; and literally dozens of im-peachment proceedings were conducted during the first century of the nation. Judges were removed from the bench for everything from cursing in the courtroom to rudeness to witnesses, from drunkenness in private life to any other conduct or behavior that was unacceptable to the public at large.

Alexander Hamilton explained that judges could be removed for “the abuse or violation of some public trust...[or for] injuries done immediately to the society itself.” Constitutional Convention delegate Elbridge Gerry considered “mal-administration”as grounds for a judge’s removal, and early Constitutional scholar William Rawle also included “the inordinate extension of power” as well as attempts to “infringe the rights of the people.” Very simply, judges could be removed whenever they disregarded public interests, affronted the will of the people, or introduced arbitrary power by seizing the role of policy-maker.

Only in the past half century has the level for an impeachable offense been erroneously redefined to be the commission of a major felony; with this incorrect standard, the people’s ability to hold judges accountable has been greatly diminished.

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