Rare are the occasions when I find myself in agreement with Alaska Dispatch News columnist Charles Wohlforth, but that happened on May 5. Wohlforth correctly highlights the impropriety of presidential elections deciding "which party will get to choose the lawgivers of the Supreme Court." He further notes that our Founding Fathers "didn't intend for the Supreme Court to be the political body it has become ... a panel of nine lifetime monarchs who, once chosen, can make almost any law they like."
True, and well-stated. Though I suspect their views on social issues diverge, Wohlforth sounds remarkably similar to the late Justice Antonin Scalia, who observed that "a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a 'democracy.'"
Wohlforth's triage on our national judiciary is solid. But his underlying diagnosis -- namely, that our Constitution is not only flawed but fatally so -- is incorrect. And his remedy of "changing the system" by amending the U.S. Constitution is pie-in-the-sky overkill reminiscent of the Tennis Court Oath.
The U.S. Constitution already provides remedies for an out-of-control judiciary. Most lie with Congress. Congress established the subordinate federal judiciary in 1789 and could abolish it overnight. The Senate has power to impeach justices (Article I, Section 3), whose tenure is contingent upon "good behavior." (Article III, section 1). This becomes a problem, I suppose, when our senators agree that overweening judicial activism is "good behavior." Then again, many senators are lawyers too.
Besides impeachment, the U.S. Constitution grants Congress the power to restrict the Supreme Court's jurisdiction. Its original jurisdiction lies in only a few types of cases; the rest of the Supreme Court's jurisdiction is subject to "such exceptions, and under such regulations, as the Congress shall make." (Article III, section 2). In other words, our elected U.S. representatives could -- and should -- take a break from regulating and excepting our individual liberties, and turn their voracious attentions to the Supreme Court. Unfortunately, this power has been used sparingly on the court, when at all (see Ex parte McCardle).
But a president can refuse to enforce a Supreme Court order or opinion, thus rendering its flightier fancies into meaningless, if interesting, pronouncements. Again, this executive power has been used most memorably (and infamously) by President Andrew Jackson in the "Trail of Tears" case (see Worcester v. Georgia). Perhaps this is what got Jackson recently ousted from the $20 bill. I imagine, however, that Wohlforth would cheer if President Obama decided not to enforce the Citizens United decision.
Some may claim executive non-enforcement of judicial orders is unconstitutional. But it is exactly this check to judicial power that our Founding Fathers contemplated when they ratified the Constitution. Alexander Hamilton wrote that the Supreme Court "may truly be said to have neither FORCE nor WILL but merely judgment: and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments ... the judiciary is beyond comparison the weakest of the three departments of power." (The Federalist, No. 78). Let the record reflect that Hamilton remains on the $10 bill, for the time being.
Here's hoping that Wohlforth continues to turn his critical eye not only on the courts but also our elected representatives and their constitutional roles. While imperfect, the U.S. Constitution is not the source of our current political woe. To paraphrase Chesterton, our constitution has not been tried and found wanting; it has been found difficult, and left untried.
Mario Bird is an attorney with the firm of Ross, Miner & Bird in Anchorage.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@alaskadispatch.com. Send submissions shorter than 200 words to letters@alaskadispatch.com or click here to submit via any web browser.