Our Federal Judiciary Oligarchy
- 18 September 2011 by Author 0 Comments
Our Federal Judiciary Oligarchy
By Richard Larsen
Published – Idaho State Journal, 09/18/11
Our federal judiciary has become arguably and implacably the most powerful oligarchic body in the country. When they rule on the “constitutionality” of an issue it is assumed to be the final say in whether a vote of congress or the vote of the people via referendum or initiative is legitimized or annulled. This is not how the Supreme Court and its substrata of appellate courts were intended to operate, nor is it de facto the way it should be.
The federal judiciary, as it has evolved historically, has unchecked and unlimited power over the nation by either of the other branches, the executive or the legislative. Its members are not accountable to the people, since most of their appointments are for life, and they cannot be removed from the bench by a vote of the people they are purported to be serving. Their ruminations and the results of their decisions are insular as they trump the will of the people with regard to key social issues. Their decisions are presumed to be final, even though they may be at odds with the democratic majority of our citizens.
Herein lies the fundamental problem about the present construct of our federal judiciary as it has evolved since the founding. If, as stated in the 10th Amendment, all “rights and powers” not specifically itemized in the Constitution are held by the people collectively or by the states, what right does a court have to negate the will of the people? As it relates especially to key cultural issues like abortion, public religious displays, and definitions of marriage, should not the final court be the court of public opinion, rather than an oligarchy of judges insulated from, and not accountable to the citizenry? In most of these cases, state courts have ruled, and appeals brought to the federal judiciary. According to the Constitution, it doesn’t have to be that way.
Thomas Jefferson portended this judicial despotism. “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.”
It is clear from reading Article III, Section 2 of the Constitution that the founders delineated with specificity, what cases the Supreme Court had jurisdiction over. It declares, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority…” In other words, the jurisdiction of the federal courts is limited to what we typically associate with federal matters. They do not have unlimited jurisdiction over the decisions handed down by state courts.
Even more telling, however, is the final sentence of Article III, Section 2, which states, “…with such exceptions, and under such regulations as the Congress shall make.” Congress, therefore, has the constitutional authority to limit or regulate the kinds of cases the Supreme Court hears.
Jefferson clearly understood the system of checks and balances on the respective powers of the three branches of government. As he said in a letter to Abigail Adams in 1804, “The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” It has obviously become a despotic branch since it can overturn the will of the people as expressed even in referenda or initiatives.
We need to reclaim the power promised in the 10th Amendment of the Constitution. We have control over the legislative and executive branches through the power of the vote. By exercising the power of the vote we can also regain control of the oligarchical judiciary by having Congress limit, as intended by the Constitution, the appellate function as currently abused by the federal judiciary. They could be limited to federal statute only, specifically exclude state issues, or limited in any way they choose.
Congress clearly has the power to limit the power and scope of the federal appellate process. Since Congress is doing nothing to limit judicial review, perhaps it’s time for us to remind them they have the power to do so.
AP award winning columnist Richard Larsen is President of Larsen Financial, a brokerage and financial planning firm in Pocatello, and is a graduate of Idaho State University with a BA in Political Science and History and former member of the Idaho State Journal Editorial Board. He can be reached at email@example.com.