By Selywn Duke
To the delight of conservatives and dismay of liberals, President Trump is doing more to reshape the American judiciary than any president in recent memory. It’s viewed as a “lasting legacy” that will ensure more “conservative” rulings — constitutionalist ones, actually — for perhaps decades to come. Unfortunately, a full understanding of the Constitution and leftists’ nature informs that this is an unfounded assumption.
Illustrating the courts’ current transformation, The Daily Signal wrote last month that “‘[o]ne out of every 4 active judges on the U.S. Court of Appeals have been appointed by President Trump,’ says Adam Kennedy, deputy assistant to the president and deputy director of communications at the White House…. ‘And the average age is actually a full 10 years younger for these justices than under President [Barack] Obama.’”
All told, the president has thus far had “158 judicial nominees confirmed to the Federal bench,” WhiteHouse.gov informs, including “two Supreme Court justices, 44 Circuit Court judges, and 112 District Court judges.” This judicial transformation is historic — but it also can be made history. How?
Aside from the well known power to impeach judges, Congress can also pack the Supreme Court. Yet it apparently has still another power, one little known: to abolish entire federal courts.
The only federal court mandated by the Constitution is the SCOTUS; as to “inferior courts,” Article III states that Congress “may from time to time ordain and establish” them, which it has often done. But implied is that what Congress can make, it can unmake; or, as the Legal Information Institute puts it, the Houses can both “expand and contract the units of the system” (emphasis added).
This is not just theoretical but has already happened: Upset about outgoing president John Adams’ packing of the judiciary with Federalists, the Jeffersonians in 1802 repealed the Judiciary Act of 1801. They then abolished the courts the legislation had created. Moreover, no provision was made for the displaced jurists even though the Constitution guarantees judges lifetime tenure, and a challenge to this apparent omission was rejected by SCOTUS justice William Paterson. And that was that — and thus was a precedentset.
Now let’s talk about the future. While unlikely in 2020, at some point the Democrats will again control the presidency and both Houses of Congress. We also know that to today’s cutthroat, “woke” Left the end justifies the means. Considering this, do you really think they’re going to let the rulings of some black-robed lawyers — people without an army or police force and who constitute (in theory) the “weakest branch” — stymie their agenda? Not a chance.
The first thing the Left would do is pack the SCOTUS. Know that the number of justices is not constitutionally mandated, but is set statutorily by Congress and at times has been more or less than nine.
In other words, a leftist legislature could raise the number to whatever was necessary to ensure an ironclad liberal majority (let’s say, 15), let its fellow traveler president nominate hard-left candidates for those positions and then confirm them. And, “Voila!” the Democrats have a judicial rubber stamp for their whole agenda.
Note that this kind of court packing was not only attempted by Democrat Franklin Roosevelt in the 1930s, but has already been proposed as a near-future strategy.
Impeachment and removal of “conservative” justices could also be pursued. Outrageous? Well, would politicians willing to impeach a president on phony charges be above doing the same to a judge? Remember here that impeaching Justice Brett Kavanaugh, whom leftists claim is illegitimate, has already been proposed, too.
Of course, complete control of SCOTUS suffices to clear the way for a hard-left agenda. If the Democrats did want to expedite matters by eliminating all judicial speed bumps, however, they could pursue Article III court abolition and, if necessary, the impeachment of lower court judges. Any challenges to these actions would meet swift rejection, too, by the in-the-pocket SCOTUS.
And just like that, President Trump’s judicial legacy would go out the window. Too radical to happen, you say? Note that the post-mask-drop Democratic Party is defined by radicalism, wearing it like a badge.
Is the above more radical, after all, than socialism and the Green New Deal? That requires remaking our whole governmental system and economy. Is it more radical than one of the Democrats’ current major causes, eliminating the Electoral College? That requires actually altering the Constitution, which means 38 states would have to sign on. The court-revamping strategy requires only federal control and action, using current constitutional provisions. Sure, the Left would have to misapply them, but has that ever stopped it before?
All this, not to mention that the “power” of “judicial supremacy” is not constitutionally granted but is enjoyed at the other two branches’ pleasure. The moment a president says, paraphrasing Andrew Jackson, “The judges have made their decision — now let them enforce it,” it goes bye-bye.
Anyone who thinks today’s “woke,” Ocasio-Cortez Democrats won’t embrace some combination of the above measures but will instead obediently abide by Trump judges’ inconvenient rulings, doesn’t know today’s Left. It’s Machiavellian, and it plays for keeps. Besides, having convinced themselves Trump is an illegitimate president and despising him viscerally, the Demo-socialists have their rationalization at the ready. They’ll feel righteous erasing his legacy.
If court-reshaping does come to pass, traditionalists’ only recourse may be state-level nullification, which Thomas Jefferson called the “rightful remedy” for all federal overreach. It would be bold action, too, and thus may some find it uncomfortably radical and revolutionary (like the Founders?). But what else are they going to do? Keep filing more lawsuits?