The Imperial Judiciary

Professor Bainbridge blogs As anyone who's been paying attention knows, the courts have morphed into super-legislatures imposing their own policy preferences on a host of cultural hot button issues that are properly within the legislative sphere. As Charles Krauthammer recently observed. The question for conservatives ought not to be whether we fight back. By indulging themselves in deciding political issues, judges - and especially the justices of the Supreme Court - have become legitimate fodder for the political process, as I've observed before. The question thus is how we fight back, since the fight has been thrust upon us.

Unfortunately, very few conservatives are handling this problem with anything remotely resembling nuance or skill.

It's time to try something a bit more drastic. Maybe to try a lot of different things. Some possibilities: Term limits on judges. Congressional legislation per section 2 of Article III of the Constitution to remove certain issues from the jurisidiction of the courts. (I'm not at all convinced that undoing the fillibuster as to judicial nominations is the right call; after all, there likely will again come a day when a liberal president enjoys a liberal majority in the Senate.) Plus:

Often, solutions to activism will lie in the political branches, even when the problem is with the judiciary. If a judge decides to extend a narrowly intended law into a new area, he can be thwarted if that law is then clarified by amending it. The new ordinance prohibiting discrimination against the disabled wasn't intended to cover the city's ballet? Just say so. (Link)

In sum, for decades we've tried the solution offered by Olson and Krauthammer and it just doesn't work. It's time get off the pot and start being a lot more creative.

Update: My favorite Cornerite agrees:

... one could reasonably conclude from 35 years of attempting to apply this solution without much success that something more is needed. I think that there are certain favorable conditions at work now (e.g., a large supply of Federalist Society types) that have not been in place in the past, so a good-appointments strategy might work better than it has in the past. But I don't think it's deranged to think that structural solutions might also be worth considering, whether term limits or jurisdiction stripping or something else.

Great minds ....

The Editors blogged Professor Bainbridge posted a good analysis of the state of the judiciary and how to fix it. He includes a critique of recent comments by Charles Krauthammer and Ted Olsen on the subject. Do read the whole thing, you’ll be glad you did.

The judiciary certainly needs fixing

Hat tip to Danny Carlton