What checks do U.S. citizens have on the judicial branch when the judicial courts get it wrong?
That was the simple question Rep. Ron DeSantis, R-Fla., asked Ninth Circuit Judge Alex Kozinski at Thursday’s House Judiciary Committee hearing. Kozinski’s answer was that the Supreme Court has no checks on bad decisions, as such.
“What are the checks on the courts as you understand the Constitution?” DeSantis asked the jurist. “[If] you guys get it wrong, district [court] gets it wrong, Supreme Court gets it grievously wrong, how do the American people check bad court decisions?”
“Well,” Kozinski replied, “when the Supreme Court speaks, by definition it gets it right. The Supreme Court interprets the Constitution. That's the way … that's what the Constitution says. That's the way our system works.”
DeSantis was less than pleased with the answer.
“I disagree with that,” DeSantis retorted. “I think if you look at cases from like the Dred Scott decision in other states, courts are not infallible.”
“This is not speaking ex cathedra from [the Supreme Court] building over here. They do get it wrong. I guess your argument to me is that there is no recourse for the Supreme Court. Five-to-four decision, even if we think it's way outside what the Constitution is, there's no mechanism for us to check that, correct?”
Judge Kozinski responded that we can amend the Constitution in response to bad decisions. He also went onto add that the Supreme Court occasionally reverses itself, but that it retains its supposed monopoly on constitutional interpretation (a concept that didn’t really exist until the mid-20th century).
In light of the recent, deeply flawed rulings from the Ninth Circuit on President Trump’s travel moratorium, Congressman DeSantis argued that Judge Kozinski’s outlook could create some dangerous precedent for the federal order.
“My concern,” DeSantis concluded, “is that when that's being done and you're invoking [Trump’s] campaign statements, I don't see a principled way where that's going to end up making sense over the long term.”
“And I understand there's antipathy in a country that's reflected on your courts or the current president. But that is not enough of a reason to wade into some of these sensitive matters of national security. And so, I think the courts […] I think they may in the long run end up undermining their proper role.”
Nate Madden is a Staff Writer for Conservative Review, focusing on religious freedom, immigration, and the judiciary. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A Publius Fellow, John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate’s writing has previously appeared in several religious and news publications. Follow him @NateMaddenCR and on Facebook.