The Supreme Court of the United States exists as the last refuge, the last court of review, the last place where the Constitution of the United States, and only the Constitution of the United States, should determine how a brief is resolved. One would hope that the Justices could put aside their personal biases and decide a case based solely on the written word in the Constitution. Why “the written word in the Constitution?” Words mean things, and the meaning of a word doesn’t change over time. Some new meanings may be added, but the original meaning remains.
In the case of the Constitution, the words mean exactly what they meant when the Constitution was drafted. Those words haven’t changed over time. We The People have changed, but those words remain the same. Immutable, carved into granite, unchanging.
The Constitution was written to divide the government into 3 branches:
- A Legislative branch, which was responsible for discussing and drafting the text of new laws.
- An Executive branch, which was charged with “faithfully executing” those laws.
- A Judicial branch, which was tasked with ensuring that the cases presented before it were based on the Constitution, did not violate any of the text in the Constitution, and was applied according to the Constitution.
The “separation of powers” was meant to allow each branch to operate in concert together: the creation of laws using Constitutionally-provided powers, the enforcement of those laws using Constitutionally-provided powers, and ensuring that the Constitutionally-provided rights of those called before the bar were not being violated.
In my opinion, the Constitutionally-balanced branches were cast into imbalance when the Supreme Court gained supremacy over the other two branches with its decision in Marbury v Madison. In this decision, the Court granted itself the power to review all laws being passed by the Legislative branch and signed by the President, along with the ability to review all actions taken by the Executive branch to enforce those laws. “Judicial Review” gave the Supreme Court absolute power over the other two branches without a process to appeal its decision. As proof of how disastrous this can be, I give you Dred Scot and Plessy v Ferguson – SCOTUS decisions that bypassed the Constitution.
Over the past 30 years, lower court district judges have overstepped their jurisdictions by issuing rulings with national effect rather than ruling on the case before them and only the plaintiffs before them. This situation has become even more egregious in the past 20 years, in no small part because of political ideologies splitting this country up. The reasons for these ideological splits are beyond the scope of this discussion. However, these ideological differences are no longer limited to the ballot box as they once were. They have now been adopted by the Judicial branch as a basis for some very questionable rulings.
Indeed, “judicial review” has taken on a new form: the use of a federal district court judge to use the power of the court to stop all federal action by implementing a national injunction. In some cases, the judge redefines the plaintiffs as a “class” and thus widens the number of affected individuals from dozens or hundreds to tens of thousands or millions. By doing this, they force the reconsideration of a brief filed in a local district court to be something that has national impact.
So, the question becomes, “why are local district court judges issuing national injunctions?” The answer is simple: a desire to enact a personal ideology and generate a national impact. There may indeed be situations where a national impact is required, but it is not the purview of a local district court to cause that impact. It is the job of the Supreme Court, and only after that case has been accepted and acted upon by higher courts.
The separation of powers in the Constitution is immutable. Unless an amendment changes things, the Executive branch is in charge of foreign policy, choosing the cabinet secretaries and empowering them to act essentially as CEOs with hire/fire authority, and taking actions to “faithfully execute the laws”. It is not in the purview of a local district court judge to tell the DOD whether members of the military may be hired or fired, whether the Department of Education must issue grants to schools, or whether the Department of State must distribute foreign aid. Those decisions are taken by the individual Executive Branch departments and are based solely on the decisions made by the Secretaries of those Departments. For example, a district court judge cannot tell the Navy where to send a ship, whether a school should remain open even if there are no students, or whether USAID should continue to fund HAMAS (as we now know it has done).
I once had respect for the Chief Justice of the SCOTUS. However, by not restraining other members of the Judicial Branch who have overstepped their authority, I believe Justice Roberts needs to revisit Article III and reacquaint himself with the limitations of the Judicial Branch, from the SCOTUS down to federal district judges, and make it absolutely clear that every court must stay within its lane. He needs to impress on District judges that they may only rule on cases in their district with effect only in their district, circuit court judges may only rule on cases that come to them within their circuit, appeals courts the same, and then the SCOTUS as the final arbitrator.
If a ruling in a district court is unsatisfactory, it should be the job of the plaintiff or the defense to appeal that case to a higher court, and so on. Only the SCOTUS should be permitted to issue decisions with national effect. That’s the way the system was designed to work
It’s time to return to first principles. If Justice Roberts can’t see this and decides that his personal ideological preferences violate the Constitution’s black-letter text, then – as chief justice of the SCOTUS – he should resign immediately.
Meanwhile, Congress should immediately work on a bill that limits the effects of the decisions of local district court judges to that district – and only that district. This is the first step needed to free the wheels of government and allow it to operate as designed: as three equal branches without any branch being superior to, or subordinate to, any other branch.
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