This Is the ‘Reform’ the Left Is Eying To End Our System of Checks and Balances

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Of all the “reform” proposals floated by the radical left to get its way at the Supreme Court — term limits, court packing, breaking justices into three-judge panels, and the like — the most destructive is the move to eliminate judicial review.

If you wanted to completely undermine the system of checks and balances put in place by the Founders, you would start there. Judicial review is the power of the Supreme Court to determine whether the legislative, executive, and, increasingly, administrative arms of the government are acting in ways that are consistent with the Constitution.

As the nation’s “court of last resort,” the Nine have the power to decide appeals on cases brought in federal court or those brought in state court but dealing with federal law. Judicial review is not some dry legal theory but a key element in preserving a system of checks and balances that prevents one or two branches from dominating or neutering the Court.

In the 78 Federalist, on the proposed structure of the federal courts for the new nation, Alexander Hamilton wrote that “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments … ”

In the June 30 meeting of President Joe Biden’s Supreme Court commission, the left wing contempt for judicial review was on full display. A Harvard Law professor, Nikolas Bowie, denounced the power of the Supreme Court to strike down laws enacted by Congress as an “antidemocratic superweapon.” He urged the commission, according to the report in the New York Times, “to advocate for reforms that will abolish the practice.”

Mr. Bowie, in his written testimony to the Biden commission, claimed that “the Court’s relationship to Congress is not that of an umpire overseeing a batter, but of a rider overseeing a horse. Most of the time, the Court gives Congress free rein to act as it pleases. But the Court remains in the saddle, ready to pull on the reins when Congress moves to disrupt hierarchies of wealth or status.”

That’s an odd image to explain the Court’s role in protecting constitutional rights, but consistent with the faux moral outrage that the left projects on any system that stands in the way of its agenda. Professor Bowie, though, got pushback on the commission.

Another Harvard Law professor, Noah Feldman, said that eliminating judicial checks on the legislative and executive branches was a risky strategy with no assurance that another approach would work better. A radical alteration of the current judicial process might even invite “overall systemic failure.”

In written testimony, Mr. Feldman observed that “the strongest opposing view, which sees the court in its current role as fundamentally counter-majoritarian and even anti-democratic, depends on the hope (or fantasy) that some other abstract entity — perhaps ‘the people’ — would somehow fulfill the Court’s functions if the Court no longer did so.”

Legal scholar Ilya Shapiro, in his new book “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court,” writes that if we “accept that judicial review is constitutional and appropriate in the first place — how a judiciary is supposed to ensure that the government secures and protects our liberties without it is beyond me — then we should be concerned that a court ‘gets it right’ regardless of whether a correct interpretation leads to the challenged law being upheld or overturned.”

The commission’s discussion on June 30 touched on several ideas for Court reform, almost all of them advanced by the political left, including court-packing (President Biden opposed) and term limits for justices as a way to curb the growing polarization of the nomination process. Mr. Shapiro, for one, views term limits as a dead end. If limits were imposed by an act of Congress, the politicization of Court battles might even reach higher levels, he says.

“No longer would politics simply intrude on confirmation battles and the occasional lightning-rod ruling,” Shapiro wrote. “Instead, it could foster a brave new world in which the federal law of Supreme Court term limits is constantly repealed, reenacted, and readjusted with each rebalancing of the Senate majority.”

In a hyper-polarized political climate, count on it. Look no further than the current Senate, held by Democrats with a razor thin margin. The left faction in the party, including many of its leaders, has a long-term strategy to increase its power with a bundle of measures, including statehood for the District of Columbia and Puerto Rico, abolishing the Electoral College, granting 16 year olds the vote, federalizing election laws, and eliminating the Senate filibuster.

Much of its legislative agenda would, as the Court is constituted today, likely run aground on a conservative majority. As it did in, say, June, when the Court ruled unanimously that Philadelphia acted unconstitutionally, in violation of the religious free exercise clause, when the city refused to contract with Catholic Social Services unless CSS agreed to certify same-sex couples as foster parents.

Undeterred, progressives — including the religious left — are renewing their focus on passage of the Equality Act, which “would gut any protection Americans have under the federal Religious Freedom Restoration Act of 1993.” Senator Schumer has vowed to “use my power as Majority Leader to put it on the floor and let’s see where everybody stands.”

President Franklin Delano Roosevelt’s rage at the Supreme Court for blocking key pieces of his New Deal legislation was the motivation behind his 1937 court-packing plan. The attack on judicial review is more nihilistic.

It would strip the court of its power to prevent Congress from trampling rights given to us by God. If Congress does attempt to end judicial review, I’d like to think the court itself would block the measure — using its constitutional power, articulated in Marbury v. Madison, of judicial review.

________

Mr. Dys (@JeremyDys) is special counsel at First Liberty Institute, a non-profit law firm defending religious freedom for all Americans.


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