Check the Courts

Judicial Activism -- the usurpation of legislative powers by the judiciary -- is in my opinion one of the biggest problems facing our country. It threatens to undermine democracy be replacing the rule of the people through their elected officials with the rule of judges through judicial fiat. Anyway I've written about this fairly extensively here, here, and here.

The question arises, "what do we do to keep the courts in check?" Lawyers at the corner have had an extensive debate about the practicality of impeaching judges. Glenn Reynolds has also added his own suggestions. Among them are term limits for judges and having a super-majority override of judicial decisions.

I find both of these options lacking.

Term limits may make the politicians more accountable, but to whom? Probably to the political majority. A step like this would only further the main problem we have with the judiciary: its politicization. Courts are supposed to tell the majority to "take a hike" when it is running roughshod over the constitutionally enumerated rights of the minority. Term limits would -- if judges can be reapointed -- only make them more mindful of the political ramifications of their decisions. But judges should mind only the law and constitution.

I have no problem with a super majority override of court decisions, though I don't think It would really change much. We already have a super majority way of checking the courts through amending the constitution, but this is largely impracticable. Any attempt is denounced as "playing politics with the constitution." Perhaps if a supper majority can override the court without changing the constitution, it would help in a PR campaign but I doubt it would provide the strong check need on the judicary. I'm told in Canada the parliament has as super majority override, and that whenever its use is even considered, the media goes wild with accusations of "the parliament infringing upon the independent judiciary" -- even though such a law is, by design, supposed to infringe upon the judiciary.

I think -- though I'm not positive-- that requiring a court to have some sort of super majority for any constitutional ruling may be appropriate. Then, if a ruling is reached that is widely unpopular, and based on statutory law, the legislature can change the ruling by changing the statute with a simple majority. Courts could still make decisions based on the constitution, but there would have to be enough of a consensus to convince 2/3rds or even 3/4ths of the judges. I think this would make constitutional judicial activism very rare. one problem is that standing opinions, which were inapropriately based on the constitution, e.g., Rove v. Wade, would be near imposible to overturn.

I'm not 100% sure this is a foolproof answer, but it seems to me like it may be a good fix.