Moderating the Reign of the Judges
By Howard Sierer
In a previous column, I described how America’s unelected judges have become the arbiters of the country’s social and moral standards, all too often legislating from the bench. Congress, which should be our most representative branch of government, has willingly acquiesced, finding it far easier to praise or blame court decisions than to take direct responsibility.
The binary nature of many court cases presented to judges containing social or moral issues forces them to choose between two often-stark alternatives in making decisions. For example, should a law impacting immigrant rights in some way be allowed to stand or not?
A judges’ dilemma contrasts with the legislative process where give and take between opposing parties when done in good faith and with the necessity to achieve a solution, can result in compromise legislation. Neither party is fully satisfied but “half a loaf” is usually better than none.
Past efforts to update immigration law offer a case study in legislative versus judicial action in resolving a difficult and contentious issue.
President Obama, unable to get the immigration legislation he wanted, issued his controversial Deferred Action for Childhood Arrivals (DACA) executive order. The order allowed “Dreamers” – young children brought here by illegal immigrant parents – to stay indefinitely along with their parents.
In 2018, Congress was wrestling with a major update to the nation’s 1980s-era immigration laws, negotiations that included provisions relating to Dreamers. Congressional negotiators for both parties were making progress in hammering out compromise legislation although no agreement had been reached.
Intending to provide an incentive for both parties to reach an agreement, the Trump administration announced plans to overturn DACA but deferred action for six months or longer if progress was being made.
Torpedoing the legislative process, a single federal district judge ruled that the Trump administration could not overturn DACA. Immigration reform negotiations went up in smoke.
Obama legislated from the White House; the judge legislated from the bench.
I have long been an ardent supporter of increased legal immigration and I’m firmly in favor of granting Dreamers legal status and a path to citizenship. Nonetheless, this judicial meddling was especially ill-timed, thwarting a compromise in the making.
Is it possible to restore the government’s judicial branch to its Constitutional place in our democracy? Here are two ideas that move in that direction while maintaining judicial independence.
First, end a single federal district judge’s ability to issue nationwide injunctions.
In a column last year, I asked whether a single, unelected federal judge – serving for life in a single judicial district – should be allowed to block government policies nationwide. Whether you are liberal or conservative, the answer should be “no.”
Today, plaintiffs often “forum shop,” bringing their cases somewhere in the country where a judge is known to be friendly to their cause.
Bad examples abound, from an Oakland federal district judge usurping nationwide authority over Central American immigrant asylum claims to a Texas federal district judge ruling Obamacare unconstitutional. Both rulings applied nationwide and were eventually overturned but not without significant disruption to our democratic processes.
The Supreme Court has the authority to establish judicial procedures and could end this malpractice with a single order. Let’s hope it does.
Second, limit Supreme Court justice terms of office to 18 years.
Justices today serve for life or until they choose to resign. Given the Court’s assumption of quasi-legislative authority described in my previous column, presidents are motivated to nominate younger judges with well-defined judicial records. The Senate confirmation process is filled with handwringing and polemics, reflecting the Court’s all-too-extensive impact on the nation.
Instead, by selecting a new Justice during the first and third years of every president’s term, the Court’s makeup would evolve regularly over time, reflecting presidential and Senate election results rather than the vagaries of death or resignation during a single presidential term.
Partisan passions would be diminished, knowing another Justice would be selected in two years. The impact of one or two justices as “swing” votes over an extended period, either liberal or conservative, would be dampened.
These two changes would encourage judicial restraint, the concept that judges should limit the use of their power to strike down laws or to declare them unfair or unconstitutional unless there is a clear conflict with the Constitution. Activist judges who interpret laws to conform to their personal sense of fairness would have a far smaller immediate impact.
Empowering the reign of the judges is a Congress unwilling to tackle and resolve tough national social and moral issues. Solving that problem will require electing legislators who are willing to “reach across the aisle” and find compromise solutions.
Instead, our political parties have been hollowing out the political center, adopting ever more extreme positions and leaving the great majority of voters abandoned in the middle. While this last election was among the most contentious on record, there were hopeful signs when voters rejected a variety of highly-partisan state-level ballot issues. Let’s hope this signals a move back toward the center.
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