Among the many of the things Americans have come to take for granted about our government's reach, power, and authority that are either untrue or manifestly unclear are the notions of "birthright citizenship" and lifetime appointments of Article III judges, including Supreme Court justices. The former, which has been formally abolished by President Trump's executive order, is currently under litigation, but the latter needs to be re-evaluated as well.
At least in the case of Trump v. Casa the Supreme Court has finally done the right thing, even if the issue at hand in this decision was only secondarily "birthright citizenship" behind lower federal judiciary overreach:
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As some commentators noted at the time, however, Justice Barrett's opinion left some daylight for lawless judges to continue to wage their obstructionist campaigns against the Trump administration by exempting "class action" suits. This occurred the other day when a federal judge in New Hampshire wriggled right though the loophole:
A federal court in New Hampshire today blocked President Trump’s executive order restricting birthright citizenship and certified a nationwide class that protects the citizenship rights of all children born on U.S. soil. The case is Barbara v. Donald J. Trump. The ruling stems from a nationwide class-action lawsuit filed June 27, immediately after a Supreme Court ruling that potentially opened the door for partial enforcement of the executive order.
In granting the request, the court provided for a 7-day delay so that the government — which argued to the Supreme Court that a nationwide class was the appropriate way to seek nationwide protection in the birthright cases — could nevertheless try to get the First Circuit Court of Appeals to stay the relief, if it decides to pursue that option. Even with a 7-day delay, the ruling will go into effect well before July 27, when partial implementation of the unconstitutional order might otherwise have begun.
Today, the administration won another victory in the Supreme Court which, by a 6-3 vote (the usual suspects dissenting) held that the president can indeed fire 1,400 functionaries at the soon-to-be-gone Department of Education.
The Supreme Court on Monday allowed President Trump to resume efforts to dismantle the Department of Education in an apparent 6-3 vote along ideological lines, lifting a judge’s order to reinstate hundreds of employees terminated in mass layoffs. The administration’s victory enables the president to move closer to fulfilling of one of his major campaign promises to oversee the elimination of the Education Department, which was created in the 1970s. The majority did not explain its reasoning, as is typical in emergency decisions. The court’s three Democratic-appointed justices publicly dissented, calling their colleagues’ ruling “indefensible.”
Still, leftist lawfare has largely been met with the usual impotent calls for a given judge's impeachment, a remedy that is almost never successfully employed. Even Alcee Hastings, an impeached and convicted federal judge, later returned as a Congressman. The near-impossibility of actually removing rogue judges, however, simply indicates that sterner remedies must be found, especially in these such cases. If the Constitution is being rewritten on the fly to allow any Article III judge anywhere to overturn an act of Congress or an executive action on purely partisan political grounds, in what sense is this still a Constitutional Republic? Especially given the fact that every single federal judge except the Chief Justice in the U.S. is a creature of Congress.
Impeachment is merely house-to-house fighting. What we need to do is nuke the entire site from orbit in a broader reconsideration of the role federal judges play in our legal system. And the place to begin is with lifetime tenure -- a phrase nowhere mentioned in the constitution. Here's the wording:
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.
One solution is simply to abolish an individual judge's appointment or his jurisdiction. It happened with the Judiciary Act of 1801, when Jefferson's Democratic-Republicans supplanted Adams' Federalists and promptly cleaned house, and again with the Judicial Code of 1911, which atomized a whole class of federal courts in a reorganization. But what about an individual remedy involving a judge's firing or demotion? Article III simply mentions "good behavior" as a condition of tenure, which has been taken to mean (by lawyers, of course), "hasn't murdered anybody lately."
But shouldn't "good behavior" mean faithfully executing the office? Being qualified for the position in the first place? Any justice who either doesn't care or who isn't up to the job surely is not exhibiting "good behavior." Yes, such considerations should have been applied during Senate confirmation hearings, but in the real world, Democrats fight tooth and nail against any GOP nominee, whereas Republicans limp-wristedly vote to confirm lest they be called nasty names.
Yon justices have a lean and hungry look.
The notion of lifetime tenure was hotly debated at the founding. One of the fiercest anti-Federalists, who vehemently disagreed with Alexander Hamilton on this subject, was "Brutus" (identity unknown), who published a series of essays arguing his case in various New York newspapers and journals around the same time that Hamilton, Madison, and John Jay were publishing The Federalist Papers under their own collective Roman pseudonym of "Publius." "The judges are to serve for life…," he wrote, dismissing impeachment as inadequate. "They are to be rendered totally independent, both of the people and the legislature… and there is no power above them, to control any of their decisions.”
Further, he saw the nearly limitless power that lifetime tenure conferred as a danger to the orderly workings of a constitutional republic: "There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven." Where Hamilton looked at lifetime appointments as a guarantee of non-partisanship, "Brutus" understood it to open the floodgates to unchecked impunity -- and along with it, a diminution of the authority of the states.
He also warned against what soon became the doctrine of "judicial review" as articulated by John Marshall in an 1803 power grab that continues to have consequences to this day. "The supreme court under this constitution would be exalted above all other power in the government, and subject to no control… The judges will give the constitution a construction according to its spirit and reason, and not to the letter."
Given that John Roberts has spent much of his tenure as Chief Justice (a gift of the George W. Bush administration) fighting to preserve the court's reputation, all he has managed to accomplish is to raise these issues again and cast disrepute on the entire federal judicial system -- much as Bush did to conservatism and the presidency. Indeed, on his watch, the heavily feminized court has latterly descended into open catfighting; in almost every 6-3 vote of importance, one is almost certain to find the three liberal women on the short side of every issue. Meanwhile more than one justice has publicly criticized Joe Biden's DEI/Broadway hopeful pick, Justice Ketangi Brown Jackson, and her lack of intellectual rigor and apparent disregard of the law if it violates her feelings.
There's one other possible remedy that should be on the table as well. Nowhere in the Constitution does it say the Chief Justice position is irrevocable: demoting the hopeless Roberts and replacing him with Justice Clarence Thomas would go a long way toward solving some of the problems "Brutus" identified two centuries ago, along with saving the Court from itself, and helping to heal the nation's divide. A continuation of this farce should no longer be countenanced.
Article tags: John Roberts, Ketanji Brown Jackson, Supreme Court
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