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Congress periodically engages in waves of "court-stripping," often to punish the courts for particular rulings on hot-button social issues.

Candidates Strike Blow at Checks and Balances

October 24, 2011

Six Presidential Candidates Strike a Blow at Checks and Balances
Plans to Undercut Courts Among Most Radical Since Ill-Fated FDR Scheme


WASHINGTON, Oct. 24 - With the presidential primaries approaching, at least six presidential candidates are proposing to dramatically undercut the power of America’s courts to uphold the Constitution and protect individual rights, said Justice at Stake, in an analysis of the campaigns’ statements.


If any of the six candidates is elected, their proposals would represent the most serious presidential initiative to structurally weaken courts, in response to specific rulings, since President Franklin Roosevelt’s ill-fated court-packing scheme in the 1930s.


“These threats go far beyond normal campaign-season posturing. They directly attack our system of checks and balances, as handed down by our nation’s Founders,” said Bert Brandenburg, executive director of the Justice at Stake Campaign. “Each of the proposals would make courts accountable to politicians, not the Constitution, even when fundamental rights are in danger.”


The anti-court attacks have come in many forms, including passages in books, public statements, and answers at a nationally televised Tea Party forum. Of the major Republican candidates, only former Massachusetts governor Mitt Romney and former Utah governor Jon Huntsman have failed to publicly endorse plans to erode the role of federal courts. At the Sept. 5 Tea Party forum, held in South Carolina, Romney said he did not want to provoke a “constitutional crisis.”


The other Republican candidates have had no such misgivings.


Former House Speaker Newt Gingrich has made attacks on federal courts a central part of his presidential campaign, saying on Oct. 7 that Congress should consider eliminating  judgeships, and even entire courts, whenever politicians disagree with a specific decision.[1] Other candidates have urged Congress to pass bills in defiance of Supreme Court rulings, to enable Congress to veto court rulings, and to declare entire categories of cases off limits to Constitutional review by federal courts.


Among the proposals:


  • Rick Perry, governor of Texas, has written that he favors a Constitutional amendment that would give Congress veto authority over Supreme Court decisions. Perry also seeks to end lifetime tenure for federal judges.[2]
  • Michele Bachmann, a congresswoman from Minnesota, has said Congress should bar courts from considering certain hot-button issues, such as legal disputes involving same-sex marriage.[3] Bachmann has referred to judges as “black-robed masters.”[4]
  • Ron Paul, a congressman from Texas, has urged Congress to prohibit federal courts from considering entire categories of legal issues,[5] so that state courts and legislatures would have the final say on the constitutionality of state laws. He also favors giving the electorate the right to vote out federal judges whose decisions they disagree with.[6]
  • Gingrich has urged Congress to eliminate the Ninth Circuit Court of Appeals,[7] the nation’s largest appellate court, because of rulings that he finds objectionable—including a 2002 case involving the Pledge of Allegiance.  
  • At the Sept. 5 Tea Party forum, Bachmann, Gingrich and Georgia businessman Herman Cain all endorsed passing a bill to overturn longstanding court rulings on reproductive rights. They cited what they claim are powers given to Congress under the 14th Amendment.[8]
  • Former U.S. Senator Rick Santorum (Pennsylvania) has called the Ninth Circuit Court of Appeals “a pox” on the country and, like Gingrich, has pledged to shut the court down.[9]


Although the proposals have all been floated by Republican candidates, Brandenburg noted that breaking down the system of checks and balances threatens Americans of every political philosophy.


“Imagine if a Democratic Congress had passed a bill saying courts could not hear legal challenges to health care legislation, or shut down courts that ruled it unconstitutional.  Many conservatives would feel that their rights had been stolen,” Brandenburg said. “And they’d be right.”


Attacks on courts have grown in recent years, as consultants, politicians and talk show hosts have pilloried “activist judges” while seeking cash, votes and viewer ratings.  Proposals to impeach judges over specific rulings began escalating in the 1990s,  reaching a high point with the Terri Schiavo end-of-life case in 2005, and there have been mounting calls to intimidate, punish or bypass judges who don’t adhere to extreme orthodoxies.


Brandenburg said the proposals are so reckless because they tamper with a system of checks and balances that keeps politicians in compliance with the Constitution.


“These plans play with fire, giving Congress not only the power to pass laws, but to decide when those laws are unconstitutional,” Brandenburg said. “Congress is one of the least trusted institutions in American today. Who expects partisans to put an impartial reading of the law over their own political desires?”


One of the great ironies of the current proposals is that their proponents claim to adhere closely to the original Founders’ wishes, and to the original text of the Constitution, even though their plans would overturn a system carefully crafted by the Founders.


As the nation was debating in the late 1780s whether to ratify the Constitution, Alexander Hamilton wrote that “the interpretation of the laws is the proper and peculiar province of the courts.”  Writing in Federalist Paper No. 78, Hamilton added that it is the “duty” of federal courts to overturn laws that exceed Congress’s authority, saying that courts must “declare all acts contrary to the manifest tenor of the Constitution void.”[10]


That view of the courts’ role under the Constitution is shared by many leading conservative jurists and scholars. On Oct. 6, Supreme Court Justice Antonin Scalia reaffirmed that our democracy depends on keeping courts insulated from political agendas, saying at a hearing of the Senate Judiciary Committee:  “The framers would say, yes, ‘That's exactly the way we set it up. We wanted power contradicting power (to prevent) an excess of legislation.’ ”[11]


Gingrich’s proposal to eliminate judgeships for political reasons also clashes violently with the Founders’ intentions. In August 1787, the Constitutional Convention considered a plan to allow Congress to oust judges for reasons other than misbehavior in office. The proposal was rejected by seven states, and favored by only one.[12] Participants in the convention included Hamilton, James Madison, George Washington and Benjamin Franklin.



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The Justice at Stake Campaign is a nonpartisan national partnership working to keep our courts fair, impartial and free from special-interest and partisan agendas. In states across America, Campaign partners work to protect our courts through public education, grass-roots organizing and reform. The Campaign provides strategic coordination and brings organizational, communications and research resources to the work of its partners and allies at the national, state and local levels. The positions of Justice at Stake partners are their own, and do not necessarily reflect those of other partners or board memberks.  For information, visit www.justiceatstake.org or read our blog www.gavelgrab.org

[10] http://www.constitution.org/fed/federa78.htm

For More Information:

Charles Hall, 202-588-9454, chall@justiceatstake.org

The positions and policies of Justice at Stake publications and campaign partners are their own, and do not necessarily reflect those of other campaign partners or board members.
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