When Will We Get Serious about Judicial Tyranny?

A Republican presidential field with over a dozen candidates splitting conservative voters may be a recipe for political disaster, but one of the silver linings is that with so many dueling personalities, some are bound to voice overlooked ideas to a wider audience than they’re used to.

So far, that’s been one of the only good things to come out of Mike Huckabee joining the fray. He’s made directly attacking the judiciary’s assumed constitutional monopoly a recurring theme over the past several months, from his January suggestion that we defy the Supreme Court if they impose same-sex marriage nationwide to his May campaign announcement blasting politicians for “surrender[ing] to the false god of judicial supremacy.”

His comments got a little debate among the commentariat and more than a little hysteria from the press, but nowhere near the conversation they should have sparked. Maybe it was the messenger—while Huck’s nanny-state, pro-amnesty, soft-on-crime, snake-oil record should absolutely keep him far, far away from the White House, conservatives can’t afford to let our rightful distaste for the Huckster distract us when he stumbles upon something important.

Sadly, a few conservatives who ought to know better did worse than ignore: they attacked. The Federalist’s Gabriel Malor flatly declared that neither Congress nor the president “get to determine that the Constitution means something contrary to what the Supreme Court decides.” Hot Air’s Jazz Shaw agreed, suggesting that the legislature’s only recourse is to “go back to the drawing board and try again,” while all the people can do is “elect better presidents who will appoint better justices.” (At least these were better than George Will’s response, which consisted almost entirely of: doesn’t Huckabee remind you of Orval Faubus?)

Reactions taking Huckabee’s side were about as rare, but for the most part more lukewarm—“he has a point” (National Review’s Jonah Goldberg) and “I have to give him credit for trying” (The Pulse 2016’s Nick Arnold). Professor Paul DeHart of Texas State University was one of the only figures to provide a full, substantive rebuttal to the critics.

The critics had Huckabee on one point: there’s no specific legislative ratification process court rulings must undergo before taking effect. But on the deeper questions of the Supreme Court’s relative authority over the Constitution and the other branches’ power to resist it, conservatives need to understand just how dangerously wrong the conventional wisdom is.

First, when the Founders made “interpretation of the laws…the proper and peculiar province of the courts,” as Alexander Hamilton put it in Federalist 78, he also warned that their province was just as capable as being abused—“if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

Indeed, all three branches take oaths to uphold the Constitution, which means that each branch must be prepared to defend it from the other branches—including the judiciary. Almost as if directly responding to Malor and Shaw all the way back in 1815, Thomas Jefferson himself said:

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.

As DeHart points out, James Madison concurred:

[D]angerous powers, not delegated, may not only be usurped and executed by the other departments, but by that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution.

Second, Huckabee’s critics claim his argument has been dead since 1803, when Marbury v. Madison established that “it is emphatically the province and duty of the judicial department to say what the law is.” But Ethics & Public Policy Center president and legal expert Edward Whelan points out that what Chief Justice John Marshall says next reveals a decidedly less intimidating context: when conflicting rules force SCOTUS to “either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law,” it “must determine which of these conflicting rules governs the case.” In other words, judicial review is merely a tool for ensuring that the Constitution trumps unconstitutional statutes. This in no way says the judiciary’s conclusions are infallible or that the other branches have to play along when it abuses the Constitution.

To Shaw and Malor, whether the Supreme Court actually has upheld the Constitution is almost an afterthought; we owe the same legal deference to good and bad rulings alike. But according to what the Founders actually said, constitutional merit means everything in whether an action is binding. This should be obvious—the Constitution is a law, after all, which means that “unconstitutional” isn’t just another word for “unwise” or “unfortunate”—it means illegal. And it doesn’t become legitimate for one of the other branches to implement an illegal decree just because it wasn’t their idea. (For more on this point, see St. Thomas Law Professor Michael Paulsen’s extended discussion here.)

So what is the proper recourse for judicial misconduct? It’s absurd to suggest men as preoccupied with limiting and balancing government power as the Founders were would have expected us to settle for “good luck winning the judicial lottery when the next Supreme Court vacancy opens up!” That means accepting potentially decades’ worth of judicially-imposed violations of life, liberty, and property.

Take abortion, for example. Roe v. Wade has fraudulently told us we’re powerless to directly prohibit the killing of innocent babies. The consequence hasn’t been some legal abstraction, but a million deaths a year. For forty-two years. With stakes like that, can we really say it’s enough to push whatever peripheral restrictions SCOTUS agrees to on one hand while hoping a future president eventually appoints a judge who will eventually vote to overturn? While people are dying?

To be sure, there are other useful tools we could be talking about. Article III gives Congress the power to place limits on the courts’ jurisdiction. Congress could impeach rogue justices. Constitutional amendments could supersede heinous decisions, establish judicial retention elections, or create some sort of legislative veto.

But while all are worth pursuing, none are ultimately adequate. Building the overwhelming popular support necessary to amend the Constitution would at best take too long and at worst be simply unrealistic. And punishing, replacing, or taking jurisdiction from current justices would only prevent their future unconstitutional rulings; they would do nothing about the offenses they’ve already committed.

So in the end, what Huckabee proposes really is the most practical and effective check on the judiciary: ignore ‘em.

It may seem radical, but the Founders back him up. In the aforementioned Federalist 78, Hamilton explains that “the judiciary is beyond comparison the weakest of the three departments of power,” because without the purse to fund them or the sword to enforce them, it can’t actually do anything about its judgments. This was by design, to ensure it “will always be the least dangerous” branch.

Jefferson concurs:

Each of the three departments has equally the right to decide for itself what is its duty under the Constitution without any regard to what the others may have decided for themselves under a similar question.

Who wins such conflicts? Madison answers:

[It is] the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another—by the judiciary as well as by the executive, or the legislature.

This means that when the elected branches decide the Supreme Court is acting so lawlessly they cannot follow its rulings while also honoring their oaths of office, the people decide which branch is in the right. If the situation really is grave enough, then it falls on conscientious and effective leaders to convince them to sustain such drastic action.

It’s to be expected that that movements are predisposed to dismiss strategies that fall beyond those conventional wisdom’s accustomed them to, proposals that demand more courage from our politicians and invite stronger hysterics from our opponents. But new strategies can’t become viable strategies if we don’t talk about them. For all his other failings, Huckabee gave us a much-needed opportunity to start the conversation. And we blew it.

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