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Sunday, February 21, 2016

If there's anything that Scalia's death has shown us, it's that the Supreme Court has way too much power

As it should come to no one's surprise, Scalia was by far my favorite sitting Supreme Court Justice.   There were many times where I said "Thank God we have Scalia in there!".  There are plenty of articles out there extolling his originalism, so I won't go too much into that.   I just want to mention that he was one the most, if not the most, outspoken champion of conservatism this country has had in the last 30 years.  His dissents were marvelous as they shredded the credibility of other opportunistic justices who would put their politics before the Constitution, exposing their own hypocrisy as they legislated from the bench.  

Yet, the fact that many people are considering this man as the last bastion against the overwhelming horde of socialist activism underscores a much deeper problem:  the Supreme Court, and all federal courts for that matter, simply have too much power.    What does it say when we feel our freedoms are being protected only by a handful of men on the Supreme Court?  It says, to me, that the Supreme Court, and other courts, have too much power.  If our constitutional rights can be negated through judicial legislation and the only thing stopping it is a handful of conservative and originalist inspire judges, then something's very wrong with how the system is working today.

Here's the problem.  Liberals, most notably the Obama administration, have been using the courts to continually push their agenda through.   See, since most of the liberal agenda is letting people do what they want (unless when it comes to Christians wanting to express their faith publicly) without some "oppressive law" punishing them, all they really have to do is repeal, stop, neutralize, or get some type judicial reinterpretation of the laws they find oppressive.  Normally, one would do this through elected officials crafted or revising legislation.  But liberals figured out that it's easier and more expedient to instead challenge the law in court and rely on subjective judicial interpretation of the law in hopes that the judge(s) will see it their way.  No law can be crafted this way to make it legal (although the Supreme has pretty much done just that with the gay marriage and Obamacare mandate decisions), but not having a prohibitive law in place is just as good as it being legal to liberals.  In other words, they're exploiting the mechanism used to prevent true democracy (mob rule) from taking over (as the saying goes "Democracy is two wolves and 1 lamb deciding what to have for lunch, while Liberty is a well armed sheep contesting the vote". )  by either negating a law or "reinterpreting" a law that suits their own, usually non originalist definition.  It's kind of a legislative back door, so to speak, that's taken advantage of repeatedly.

On top of that, judges at virtually all levels have no immediate accountability for the decisions they make.  Sure, some can be ousted from office via election. But, whatever they ruled on stands, even if it's a breathtakingly total abuse of their power that defies logic or law. That is, unless an appeal is made to a  higher court and it's overturned.  But some times that's not an available option.  Basically, a judge's power within their own courtroom is pretty much absolute.  With such a potential for abuse of power, the best way to keep that power in check is for those appointing these judges (or even those electing) to pick someone who is objective and willing to uphold the law over their personal opinions.  Yet, that doesn't seem to be the case these days.  The Obama administration, known for appointing people with clear partisan biases that have also clearly acted on those biases, has appointed roughly 40% of all federal court judges in the past 7 years.  When you have an administration that's turned the Department of Justice into the Department of Social Justice and the IRS into an oppression machine, would you really trust that these Obama appointees will truly be as impartial as they're supposed to be?  

So, what to be done?  Unfortunately, there's not a lot that can be done.  Any mechanism that would rely on the vote of the people to overturn or negate a judge's poor decision runs the risk of slipping into a form of mob rule where the people could override  any decision they didn't like, defeating the purpose of the courts themselves.  While I can't think of a perfect solution, I do have ideas..

First, judges should have term limits, even Supreme Court Justices.  Also, all judges should be elected (and re-elected) by the people over which they preside.  This means that the Supreme Court would have national elections.  Every so often one or several seats would come up for re-election.  The same would be true for the lower courts, but only the people in the area of the country that they preside over would vote for them.  

At least this way, if there's an "activist judge" not upholding their oaths of office, then the people can vote them out and get someone hopefully better on there.  Also, while the peopel wouldn't be able to directly counteract  a terrible decision, at least how the judges got into office was the "will of the people" and not at the mercy of the current administration and mood of our Senate.  

In fact, I believe all elected officials across all government branches should have term limits.  Remember that power can corrupt.  Especially if it's power that one can hold onto indefinitely.  This type of power should only be held temporarily, reducing the risk of corruption making a lasting impact.  

In any case, the power judges, especially the Supreme Court Justices, wield and their lack of accountability along with virtually "for life" terms is a prime example of how power should not only be checked and balanced by other branches, but by time itself.  

Any candidate running that's serious about "washington reform" should run on a term limit, for both Congress and Judges, platform. Here's to hoping enough have the boldness to do just that.