It’s been nearly a month since the Supreme Court issued a string of decisions that roiled conservatives’ faith in Chief Justice John Roberts’ court. But Republicans are not backing down from their push to drastically alter the judicial branch.
Conservatives had already been looking into ways to undermine the Supreme Court’s authority ahead of its decision to legalize same-sex marriage. But when that decision, along with one upholding a provision in Obamacare, came down in late June, their frustrations reached a fever pitch.
Conservatives are now responding with “solutions” to crack down on the Roberts court’s so-called “judicial activism” with changes that would drastically alter the structure of the U.S. government.
“This past term, the court crossed a line, continued its long descent into lawlessness to a level I believe demands action,” Sen. Ted Cruz (R-TX) said Wednesday at a Senate hearing he called to “discuss what options the American people have to rein in judicial tyranny.”
Cruz, also a 2016 candidate, has called for a constitutional amendment that would submit the Supreme Court justices to national retention elections every eight years.
“The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself,” he wrote in a National Review op-ed soon after the two decisions.
Former Arkansas Gov. Mike Huckabee, also a GOP White House candidate, has floated term limits as a way to rein-in the “disturbing” recent behavior of the justices, as “our country is being ruled by a majority of nine lawyers who are not representative of the population as a whole.”
Meanwhile, Rep. Steve King (R-IA) threw his support behind impeaching certain judges over the marriage ruling, telling an Iowa radio show, “that provision does exist, and let’s hear what the public has to say.”
July 19, 2005: President Bush walks past a portrait of Ronald Reagan with federal appeals court judge John G. Roberts Jr., on his way to announce Roberts as his first nominee for the Supreme Court.
King zeroed in on Justice Ruth Bader Ginsburg and Justice Elena Kagan, who he suggested should have recused themselves from the gay marriage decision as the two “had been conducting same-sex marriages on their spare time.” But it is Chief Justice Roberts himself, a conservative appointed by President George W. Bush, who is bearing the brunt of the right’s anger. In the wake of the most recent Obamacare decision, for which Roberts wrote the majority opinion, commentators labeled him a “disastrous pick,” “the water boy for the welfare state,” and a “disgrace.”
But it’s not just the firebrands who have had it with the Roberts court, despite it having one of the most conservative records in history. A Gallup poll released last week shows Republican approval of the Supreme Court at 18 percent, its lowest point in the 15 years surveyed and down 33 percentage points from last summer.
Wednesday’s hearing — titled “With Prejudice: Supreme Court Activism and Possible Solutions” and convened by the Judiciary Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, which Cruz chairs — presented the latest wave of efforts to attack the Supreme Court for straying from the high hopes conservatives had after Bush nominated Samuel Alito to the seat vacated by the more moderate Sandra Day O’Connor.
“When I see what’s happened at the Supreme Court level, it strikes me as a foreign, unhistorical approach to law. It’s just breathtaking, some of the things that have happened,” Sen. Jeff Sessions (R-AL) said during the hearing.
One witness, John Eastman — a Chapman University law professor who also serves as the chair of the board for National Organization for Marriage — suggested constitutional amendments allowing states by a majority vote to override “truly egregious” decisions by the court and a supermajority of Congress to do the same.
Another witness, Edward Whelan, president of the Ethics and Public Policy Center, threw out an assortment of ideas, including changes to the constitutional amendment process itself, opportunities to override decisions, more avenues to remove bad judges, and term limits.
“The Court’s extraordinary abuses also call for consideration of extraordinary
responses,” he said.
After the hearing, Sessions stopped short of endorsing Cruz’s or any of the other proposals, but told reporters, “Congress should not acquiesce indefinitely, [to] judicial overreach.”
“They’ve asserted power to carry out an agenda, and I think Congress has powers, too,” Sessions said. “So we need to consider carefully and thoughtfully what we might use to defend congressional prerogative and the states’ prerogative,” he said.
Not everyone in conservative legal circles, however, is happy about the current push to blow up the top level of judicial branch.
George Will has called the current debate surrounding the Supreme Court “perilous” and said that it was “especially disheartening that Cruz, who clerked for Chief Justice William Rehnquist and who is better equipped by education and experience to think clearly about courts, proposes curing what he considers this court’s political behavior by turning the court into a third political branch.”
Ted Olson, a top GOP lawyer and President George W. Bush’s solicitor general, struck a similar chord when expressing skepticism about Cruz’s amendment idea, telling the Washington Post it “it has virtually no chance of succeeding.”
“I would think that most graduates of the Harvard Law School know that,” he said.
Some conservatives insist all the talk of “judicial activism” is a distraction, and the emphasis should be on nominating justices based on their broader approach to interpreting the law.
“’Activism shifts the question from the meaning of the Constitution to the role of justices,” said Randy Barnett, a Georgetown University law professor at the center of the conservative legal challenges to Obamacare. “Our focus should be on the meaning of the Constitution, not just solely on the role of justices.”
But the Supreme Court’s recently minted foes show no signs of slowing down.
“Structural changes to the Constitution always take time. And one has to build a public predicate for it, and build the case,” Cruz told reporters Wednesday.
“When we have five unelected judges who are declaring for themselves they can decide every contested policy issue in our society, it is incumbent on elected representatives to take that authority.”