The Need for Judicial Reform

7/4/05

For generations, our nation has suffered under Supreme Court justices who rewrite law according to their own liking. Instead of upholding the Constitution and our founding principles, they declare from the bench new interpretations of law that are in essence new laws, with no foundation except in the private beliefs and preferences of the justices themselves. Many leading justices have followed the agenda of social forces that are trying to build a society dedicated to total personal freedom, where everyone can pursue his own pleasure without restraint.

The Court has lifted itself to a level of importance never envisioned by our Founding Fathers. It has made itself the arbiter of every great question before the nation—what is murder and what is not, what is permissible in sexual conduct and what is not, what is the place of God in society, and even whether the doctrine of creation is scientific. Yet the Court has no Constitutional power to intrude in such matters. By habitually overstepping its authority, it has replaced genuine democracy with judicial tyranny.

An egregious example of abuse is the recent ruling enlarging the state's right of eminent domain. Now, the state can condemn private property for no reason except to allow redevelopment that will yield higher taxes. In effect, all limitations on the right of eminent domain have been removed. The state can force out any property owners it does not like by the simple expedient of declaring their land suitable for enlarging the tax base. Because churches generate no tax revenue, they are especially vulnerable to losing their property at the whim of local government.

The high court came to this decision by a vote of five to four. The narrow margin was typical of landmark decisions in recent years. It is preposterous that power to reshape American society lies in the hands of a single justice. Whatever happened to government of the people, by the people, and for the people? It would help to place justices on the court who are humble enough to refrain from imposing their own opinions, groundless in real law, on the whole nation. But the basic problem is structural. We are suffering from a flaw in the design of our system of government, and the only adequate solution is a constitutional amendment. The amendment should contain three provisions:

1. Court decisions should require a vote of at least seven to two. Failure to reach a decision would invalidate the suit originally brought before the court and restore status quo ante.

The genius of this provision is that it would, in a single stroke, gain three vital benefits. It would shift power to the legislative and executive branches of government, thus correcting the current imbalance. In any matter where the court failed to reach a decision, the other branches could step in and take appropriate action. Another benefit of this provision is that it would remove ideologically divisive issues from the jurisdiction of the court, at least so long as the court is a mixture of liberals and conservatives. Yet another benefit is that in order to play a role in government, the justices would have to reach consensus, and they would always reach it most easily by simply paying due respect to existing law.

2. It should be stated as a constitutional requirement that decisions be limited to interpretation of existing law.

3. It should be stated further that individual judges who consistently advance their own opinions at the expense of existing law would be subject to impeachment.