The Personal Website of Mark W. Dawson

Judges, Not Lords

A Co-Equal Branch

Each branch of the Government; Executive, Legislative, and Judicial, take an oath of fidelity to the U.S. Constitution, and each branch needs to uphold the Constitution as it sees fit. As each branch is co-equal to each other, all three branches have the duty and responsibility to enforce the Constitution. No one branch is supreme in their duty or responsibility to enforce the Constitution. The Supreme Court is only supreme within the Judicial branch. The Supreme Court does have the responsibility to determine if the Legislature or Executive branch is exceeding its authority under the Constitution. Still, it has no authority to create policy or regulations (this is often expressed as the ability to negate a law or piece of the law, but not to create law, rules, or regulations). In modern United States history, the U.S. Supreme Court has played a larger role in society than it traditionally has. Many have looked to the courts to achieve social change, and I believe that this is injurious to the Constitutional separation of powers.

Not Always Right

The Supreme Court is composed of human beings and, as such, often makes mistakes in its rulings. Some of the most divisive issues have been because of these wrongly decided Supreme Court rulings as I have written in my article, "Supreme, But Not Always Right". In my opinion, these rulings were outside the scope of the Constitution or were decide incorrectly. The Legislative and Executive branches have a duty and responsibility to correct the mistakes of the Judicial branch through the appropriate legislative and executive processes. To not do so is to elevate the Supreme Court above the Legislative and Executive branches, which is destructive to the Constitutional checks and balances within the branches of Government. An excellent and very readable overview of this subject is the book "The Constitution: An Introduction by Michael Stokes Paulsen and Luke Paulsen" and I would highly recommend your reading this book.

Judges, Not Lords

As stated previously, the Judiciary needs to be independent of those that create the laws (the legislature) and those that enforce the laws (the executive). The Judiciary should be under no influence by the legislature or the executive to assure that the laws are justly applied for all. The only constriction on the Judiciary is that they operate within the bounds of the law and the Constitution and that they equally and justly apply the law. The Judiciary also needs to be cognizant that they do not encroach on the prerogatives of the legislature to create laws and the executive to enforce the law, except to determine if the law is constitutional. They are the primary facilitators for "Justice and The Rule of Law in America", which is their primary responsibility.

It is an unfortunate fact that in today's judicial system, judges often go beyond the scope of their duties and responsibilities. When a judge issues a ruling utilizing convoluted reasoning or stretching the law in which it was never intended to do, they are corrupting the Constitutional and the democratic process. A judge is responsible for making sure that the law is equally applied to all who come before them. Their holdings, rulings, and decisions should be based primarily on the law as it is written, or the intentions of the lawgivers as expressed during the legislative process. Laws are created to assure a civil society. If a law, or judicial rulings and decisions, is convoluted or distorted, it cannot be followed by the members of the society. The best example of a straightforward law is the United States Constitution. Anyone who has received a basic education in reading, writing, arithmetic, and reasoning can read and understand the United States Constitution. So, it should be with any law or judicial ruling or decision.

If a judge issues a ruling or decision that is convoluted or distorted, they have stepped outside the bounds of their duties. These types of rulings and decisions are often done to achieve a positive social good (referred to as judicial activism). However, achieving a positive social good is the prerogative of the legislature, elected by the people to achieve this social good. This is best explained by Claude Frederic Bastiat's essay, "The Law". Claude Frederic Bastiat was a French economist and political philosopher of the mid-19th century. Even though his examples are of that time, they are perfectly understandable by anyone in today's world. I would encourage all to read this essay, and if I could, I would make it required reading for all high school students. When a judge engages in judicial activism, they are no longer being a judge but are becoming lords. Lords are inherently undemocratic and arbitrary, and it should be remembered that if a judge can do something for you, they can also do something against you. We should also be reminded of the words of Alexander Hamilton:

"Liberty can have nothing to fear' from judges who apply the law, but liberty 'has everything to fear' if judges try to legislate"
- Alexander Hamilton

Unfortunately, the history of the Judiciary in the last half-century has been one of judges trying to legislate through judicial activism. Under many guises, the latest being social justice, judges have issued rulings that go beyond the scope of their responsibilities. Recently, they have also issued many more nationwide injunctions that have been overturned by Appellate Courts or the Supreme Court. Nationwide injunctions that limit or countermand the Executive Branch in the performance of its duties. Sometimes these nationwide injunctions are necessary when the President or Congress acts beyond their Constitutional limits. Many times, however, the nationwide injunctions are more about policy disagreements rather than constitutional limits. This judicial activism has become so pervasive that the Courts are where activists are attempting to enact social changes, rather than through legislative actions. If judges can become agents of change, then the appointment and confirmation of judges have political repercussions. This, therefore, is why the appointment and confirmation of judges have become politized and partisan.

Judges need to remain within the Four Corners of the Law and the Constitution, and only rule on the words and meaning of the law and the Constitution. They need to leave policy differences, or social changes, to the prerogative of Congress and the Executive branches where it rightfully belongs. To do otherwise is for the Judge to become a legislator, which makes them "Lords, Not Judges".

Restructuring the Courts

The question then remains as to how best to rein in judges who exceed their constitutional duties and responsibilities. One method that has been suggested is that of impeachment. Impeachment is a draconian measure, fraught with political intrigue, and difficult to accomplish. Impeachment for Judges has a history of only being utilized for egregious personal behavior, and not for flagrant judicial rulings. Impeachment should only be used as a last resort to remove a judge, and only when there are flagrant violations of the Constitution or the Law by a judge. Term Limits for Judges have also been suggested. However, term limits allow a judge to remain in office after flagrant judicial rulings and thus allow them to continue to issue flagrant judicial rulings. Therefore, term limits are only a partial solution to the problem of judges who exceed their constitutional duties and responsibilities. Another method would be the legislative nullification of court orders and rulings. Again, this has ramifications as to the rule of law and order in a just society. It should not be done lightly, and only done with the consideration of possible unintended consequences and the actual consequences of this nullification act. Others have suggested that we wait until a judge retires and assure that their replacement would have more fidelity to the constitutional restrictions of judges. This method is often time-consuming and imprecise and allows for the continuation of an unconstitutional order or ruling to be in effect until something is done to change the order. It also allows the Judge to continue to make unconstitutional orders or rulings.

I believe a restructuring of the court system in the United States would assist in determining the best course of action in the case of judicial activism. The United States Courts of Appeals (or Circuit Courts) are the intermediate appellate courts of the United States federal court system. There are 11 Circuit Courts, plus two additional circuit courts allocated to the District of Columbia and United States District Court for the District of Wyoming. A court of appeals decides appeals from the district courts within its federal judicial circuit, and in some instances from other designated federal courts and administrative agencies. The United States Courts of Appeals are considered among the most powerful and influential courts in the United States. Because of their ability to set a legal precedent in regions that cover millions of Americans, the United States Courts of Appeals have a strong policy influence on U.S. law. Moreover, because the U.S. Supreme Court chooses to review less than 1% of the more than 10,000 cases filed with it annually, the United States Courts of Appeals serve as the final arbiter on most federal cases. The current Circuit Courts established in the United States are:

Currently, the circuit courts are unbalanced in the population numbers of the residents within the circuit court. There should be a rebalancing of the geographic boundaries of the Circuit Courts to reflect a more even population distribution (or perhaps current historical caseloads). I believe that we should have ten Circuit Courts plus one Circuit Court for the District of Columbia. I also believe that there should be one Supreme Court judge who is responsible for one circuit court and the district courts therein, and the Chief Justice of the United States is responsible for the District of Columbia Circuit Court. This would mean the appointment of two additional Supreme Court justices. In order to minimize the political ramifications of these appointments, they should occur after a federal election for President of the United States, following the swearing-in of the new President and their nominations for these two additional Justices, and to take effect the end of the current Supreme Court calendar. This would hopefully remove any political objections to adding to the Supreme Court and make it an issue during the presidential election process so the people would have a say, through the next President elected, of who should be nominated to these two additional Supreme Court judgeships.

The Supreme Court judge responsible for a Circuit and District Court would be charged with preparing an annual report of the activities of the Circuit and District Courts and the judges therein during the Supreme Courts' summer recess. They would report on such things as the caseloads, the dispositions, the appeals, and the overriding of judicial decisions by the Circuit and Supreme Court of judicial decisions. This information would then be utilized by the Congress of the United States as part of its federal oversight responsibilities. It could also be used as the basis for the possible removal of a judge, if that Judge has been excessively overruled, or acted outside the boundaries of their judicial responsibilities.

As to the removal of a Judge that has been found to exceed their authority under the Constitution, some have suggested (and has been the case in the past) that you can only remove a Judge through Impeachment for High Crimes and Misdemeanors. However, Article III, Section. 1. Of the Constitution states:

"The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office."

It does not mention Impeachment or High Crimes and Misdemeanors, but only Good Behavior. If we define Good Behavior to include their sworn duty to uphold and protect the Constitution and Laws of the United States, and a Judges has been found by their rulings that they have exceeded their judicial authority, and therefore not upholding the Constitution or Laws, then they should be removed in the same manner in which they were appointed – by the Senate voting to remove them.

The removal of a judge is fraught with potential Constitutional, legal, political, and partisan ramifications. It should, therefore, be very difficult to remove a judge. A Constitutional amendment may be required[i], and a law needs to be passed that defines "good Behaviour "of a Judge or Justice. New Senate rules should be established and promulgated for removals that would act as a check on the President and Senate to assure that they do not abuse this power. The authority to nominate Judges is delegated to the President of the United States in the Constitution, with the approval of the Senate by a majority vote. I would suggest that the President submits to the Senate the name of, and reasons for, the removal of a judge, based upon the Supreme Court Justice annual reports of a determination that a judge has often, excessively, or fallaciously exceeded their authority, duties, or responsibility to uphold the Constitution and interpret the Laws. Another avenue of removal of a Justice or Judge would be for a three-fifths vote of no confidence by the House of Representatives of Congress to the United States Senate. The Senate Judiciary Committee would then review the case, and upon a 3/5 vote of approval in Committee for removal, the Judiciary Committee submits the Judge for removal to the full Senate. Such removal shall be by two-thirds vote for a Supreme Court Justice, three-fifths vote for an Appellate Court Judge, and a majority vote for a District Court Judge by the full Senate for the removal of said Justice or Judge. Upon a vote for approval for removal the Judge will be removed posthaste from office.

I believe that a combination of term limits and removal of judges would assure that we have Judges, and not Lords.

Constitutional Changes

[i] Article III of the Constitution shall be replaced as follows:

Article III. – Judicial Branch

The Judicial Power of the United States shall be vested in one Supreme Court composed of eleven members, one of who will be designated as the Chief Justice of the United States. There shall be ten Appellate Courts for the States and one Appellate Court for the District of Columbia. District Courts will be established as the Congress may from time to time ordain and empower, but a District Court shall be established for the District of Columbia. At stated Times, all Justices will receive an annual salary and annual pension benefits for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section 1 - Structure of the Courts

The ten Appellate Courts for the States shall be apportioned amongst the States based on the equal population of its citizens as determined by the Enumeration of every ten years, and each Appellate Court will have a contiguous boundary along State boundaries. Each Appellate Courts is to be administered by an individual Supreme Court member, with the Chief Justice of the Supreme Court administrating the Appellate Court for the District of Columbia. An annual report of the activities of the Circuit and District Courts, prepared by the Supreme Court Justice responsible for the Circuit Court, shall be submitted to the Congress and the President during the Supreme Courts summer recess.

A Supreme Court Justice shall serve a term of twenty-four years, an Appellate Court Judge shall serve a term of eighteen years, and a District Court Judge shall serve a term of twelve years. A Supreme Court Justice, or an Appellate Court or District Court Judge may be re-nominated for a second term by the President, with a majority approval by the Senate, but the duration for the second term of office shall be one-half of the original term of office.

The District Court for the District of Columbia and the Appellate Court for the District of Columbia are for the sole purpose of adjudicating matters of Constitutional Law. Petitions from the Executive and Legislative Branches of the United States Government shall first be considered by the Appellate Court for the District of Columbia, while petitions from State governments shall first be considered by the District Court for the District of Columbia. Other standing parties who wish to challenge the Constitutionally of Federal Laws, Regulations, or Actions shall start their petitions at a local District Court with appeals of the local District Court decisions to be directed to the District Court for the District of Columbia for re-judgment. Stays or injunctions of Federal Laws, Regulations, and Actions may only be issued by the District Court for the District of Columbia, the Appellate Court for the District of Columbia, or the United States Supreme Court.

Upon a Petition to the Appellate Court for the District of Columbia by the Speaker of the House of Representatives, or the President Pro-Tempe of the Senate, or by the President of the United States, as to the Constitutionality of any Laws, Acts, or Rulings by the Executive, Legislative, or Judicial Branches, the Appellate Court for the District of Columbia shall adjudicate and rule on the Petition within ninety days of the receipt of the Petition. An appeal of the Appellate Court for the District of Columbia decision shall be received by the Chief Justice of the Supreme Court within thirty days, and it shall be adjudicated by the Chief Justice of the Supreme Court, or the entire Supreme Court if the Chief Justice of the Supreme Court sees fit, within a period of sixty days.

All appeals of a District Court decision will proceed to the Appellate Court in which the District Court resides. All appeals of an Appellate Court decision will proceed to the Supreme Court Justice responsible for administering the Appellate Court.

Section 2 - Removal of Justices and Judges

No Supreme Court Justice, Appellate Court Judge or District Court Judge may be removed from their office while serving during Good Behavior or Constitutional Jurisprudence. Good Behavior shall be defined as not committing any Treason, Bribery, or any High Crimes or Misdemeanors. Constitutional Jurisprudence shall be defined as not issuing any court rulings that fall outside the scope of their vested Judicial Constitutional responsibilities. A Supreme Court Justice, Appellate Court Judge or District Court Judge may be removed during their term of office for not exercising Good Behavior or Constitutional Jurisprudence. Such removal shall be on a recommendation for removal of a Justice or Judge by the President of the United States to the United States Senate, or a three-fifths vote of no confidence by the House of Representatives of Congress to the United States Senate. Such removal by the Senate shall be by two-thirds vote for a Supreme Court Justice, three-fifths vote for an Appellate Court Judge, and a majority vote for a District Court Judge by the full Senate for the removal of said Justice or Judge.

Any Justice or Judge who is absent for more than five consecutive weeks from a Judicial session, whether it be from illness or injury or other reasons, shall be considered to have vacated their seat and shall be replaced as specified in this Constitution.

Section 3 - Judicial Powers

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

No Justice or Judge of a District, Appellate, or the Supreme Court shall have any involvement in Federal elections other than to determine a violation of Constitutional or Civil Rights in the election process.