It is difficult to argue against the assertion that the United States Supreme Court has become totally unmoored from its original purpose.
Decisions from the Court are treated with a breathless anticipation equaled perhaps only by the faithful awaiting the white smoke at the Vatican. Those decisions are regarded as the final say in constitutional law.
Justices are accorded undue reverence and significance, as they legislate from the bench with decisions that increasingly encroach upon the lives of the sovereign citizens. Yet matters of commerce, liberty, and life and death were not to be in the hands of five robed attorneys.
Individuals sold as originalists (such as John Roberts and Neil Gorsuch) fiddle with legislation to fit a particular policy preference. Ruth Bader Ginsburg and Sonia Sotomayor make no bones about their misnamed progressive agenda.
As it is with congressional overreach and abuse of power, a correction is in order that will return the Court to its intended function and reverse the ability of justices to sit on that Court for the remainder of their lives.
In this latest installment of reviewing various chapters of author, radio host, and COS supporter Mark Levin’s The Liberty Amendments: Restoring the American Republic, we consider an amendment to the Constitution that would not only term limit Supreme Court justices, but would also confer upon Congress and the state legislatures the ability to reverse decisions of that Court.
Once again, Levin’s meticulous research concerning the debates about and construction of the Constitution and the initial assertiveness of the Court proves invaluable in setting up his argument for term-limiting justices.
Among other sources, he presents excerpts from the Federalist and the Anti-Federalist (Alexander Hamilton and “Brutus,” thought to be New York judge Robert Yates, respectively) that demonstrate both the care that the Founders took in placing limitations on the judiciary and concerns about the judiciary acting as a legislature.
Levin also discusses the devastating effects of Chief Justice John Marshall’s expansion of judicial review in his opinion in Marbury v. Madison and Chief Justice Roger Taney’s opinion in Dred Scott v. Sandford, followed by the reactions of Thomas Jefferson and Abraham Lincoln to those decisions.
He also examines the poisonous “Progressive” infiltration of the Court and several examples of contemporary justices looking beyond U.S. law to inform their opinions and decisions.
Lincoln’s response to Taney’s abominable decision and reasoning in the Dred Scott case--which did much to bring about the Civil War--was delivered during his first inaugural. It resonates greatly today:
“At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
What to do to curb the power of the Court? The most relevant sections of Levin’s proposed amendment are as follows:
SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.
SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.
SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.
SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.
To the anticipated argument that term limits would remove originalists such as Clarence Thomas, Levin crafts a creative method for classifying the justices by reverse seniority to begin the term limit process. As he points out, the amendment process will be such that the makeup of the Court will be different. In any case:
“The process underscores that this proposed amendment is not about individual justices or political advantage, but strengthening the republican nature of our government.”
Regarding the sections permitting Congress and the state legislatures to overturn decisions of the Court, Levin amplifies Lincoln:
“By adding the override, for the first time judges will know that their most significant majority opinions may not solely be judged by history, but by the people who must live under them…”
It is also important to note that Levin’s proposals include time-limitations on the ability of Congress and the state legislatures to override a Court opinion. Congress nor the legislatures can abuse their power, but they do have ample ability to exercise it on behalf of their constituents.
Should such an amendment become reality, Supreme Court justices would realize that their time is finite and that their decisions would not necessarily be set in stone. Temptations to legislate would be checked by actual legislatures and the threat of having shoddy constitutional jurisprudence embarrassingly rejected.
Levin makes a compelling argument in favor of term limits for Supreme Court justices and allowing the people, through their elected representatives, to restore the limitations originally placed upon the Court and slap away the overreaching hand of the judiciary.
