How to Check the Supreme Court

There is no check on the Supreme Court – none – and it is incumbent upon us to implement one.

by Hugh McInnish via American Thinker

Comes now Peter Skurkiss and posts a fine piece on American Thinker concerning the panic the NYT is having at the thought of impending retirements on the Supreme Court.  The Times laments the horrible possibility that one or more of the justices may quit while Trump is in office and be replaced with a “conservative” – that is, with someone who has a reverence for the Constitution and what our venerated founders intended for the limited role of the Court.

But shouldn’t those of us who stand as the antithesis to the NYT be equally concerned?  Indeed, we should.  The Court “has morphed into an über legislative body,” “[m]andating homosexual ‘marriage’ and abortion for all 50 states.”

What is the apparent cure for this oozing boil on the corpus of our government?  The standard solution: See that We Republicans maintain control of the White House and the Congress.  Then, when vacancies occur, we can appoint “good” judges and proceed to return to the Constitution.  While I concur fully with this answer, I do not see it as the final answer.

Our boast of our system of checks and balances in our government is inaccurate.  There is no check on the Supreme Court – none – and it is incumbent upon us to implement one. The president and the Supreme Court check the Congress.  Congress and the Court check the president.  But the Court?  Who checks it?  Nobody!

How might we do that?

Here in my state of Alabama, as in some other states, we elect our judges.  This works tolerably well, so why would it not work in the federal domain?  But oh, it will be said, this would cause the judges to lose their independence.  But their “independence” is exactly the problem.  It is total.  They are answerable to no one but themselves and their consciences, informed by their ideology.

My proposal would work something like this: district judges would be elected in the districts in which they serve.  Circuit court judges would be elected in the states in which they serve.  Supreme Court judges would be elected nationwide.

But this would be a different kind of election. The judges would be initially appointed, as they presently are.  Then, after a term of a specified number of years, their names would appear on the ballot, and the voter would be asked to vote to “retain” or “retire” the judge.  If the majority vote to retain him or her, things proceed peacefully along.  But if the vote is to retire the judge, the judgeship becomes vacant, and a new selection is made, just as it is now.

This method would provide a check on the federal judiciary, at the same time protecting it from excessive democracy, in which transient passions could have detrimental effects.

I have another thought.  At various times, the British have established the House of Lords as the court of last resort.  This history is complex and can be studied to the delight of the heart of any legal scholar.  Have a look, for example, at the article on this subject on Wikipedia.

With the Senate substituted for the House of Lords, would this work for us here on this side of the Atlantic?  All I can say is that it might, and it is worth our consideration.  One objection might be that it gives to the Legislative Branch a role intended for the Judicial.  But remember: the Senate already has such a role.  It is assigned the judicial role of trying the president after the House impeaches him.

Both of these proposals would require a constitutional amendment to be implemented, and that is never easy. Before we commit ourselves to such a daunting task, first conclude that a change is needed.  The Judiciary must be checked.  As always, the first step in solving a problem is to acknowledge its existence, and I’m not sure we’ve done that yet.

Hugh McInnish claims to be a retired rocket scientist, having worked as an engineer in the Star Wars program.  With his wife, who is a retired schoolmarm, as his proofreader and critic, he blogs from Huntsville, Alabama.

This article was originally published at American Thinker. Read the original article here.


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