Here’s another shrill piece about the dangers our republic faces because folks are criticizing judicial decisions and suggesting that judges have too much power. The author of the piece, Bert Brandenburg, makes no serious attempt to defend the existing balance of power between the judiciary and the other branches of government, or the way in which that power is being used. Rather, he assumes that judges should possess all of the power they have appropriated, and that criticism of the way in which they exercise their power somehow is out-of-bounds.
Brandenburg argues that, beyond criticizing judges, Congress in a few instances has passed, or is considering, legislation limiting court jurisdiction. But Congress has the constitutional right to limit federal court jurisdiction. If doing so denies citizens other constitutionally protected rights (as Brandenburg assumes, but does not argue, it will), then the courts can strike down the offending legislation, and there is no recourse except to amend the constitution.
The amendment option, too, has Brandenburg fretting. But surely Brandenburg knows how extraordinarily difficult it is to amend the constitution. By contrast, it is easy to talk about amending the constitution, and such talk is, perhaps, one way to prevent judges from abusing their power to the point that amending the constitution becomes a realistic option. Threats of impeachment, about which Brandenburg also frets despite the absence of any actual judicial impeachments, is another. Brandenburg calls this “intimidation.” I call it the natural playing out of the inevitable tension that results from giving unelected judges a large say in the context of democratic governance. The alternative, reacting passively or not at all to each new society-altering judicial pronouncement, is clearly unacceptable in a democracy.
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