This is the second of a two-part series. View “Battle for the courts part 1: A major problem requires major reform.”
Do you think the American people would ever have ratified” the Constitution if they had been told “the meaning of this document shall be whatever a majority of the Supreme Court says it is?”
— Justice Antonin Scalia, in one of his final public speeches before his death
On Election Day, a terrific grassroots activist from North Carolina sent me a text with a picture of a sign placed outside her polling station that read: “No Photo ID Needed to Vote.” My friend lamented, “All that work we did to get voter ID, and it amounts to nothing.”
She was referring to the work they did to win historic Republican super-majorities in the North Carolina legislatures and pass a photo ID law — only to have it nullified by the Fourth Circuit Court of Appeals. Stripping away the legal hocus-pocus, the court essentially said black people are too stupid and pathetic to carry a photo ID, even if it is provided to them free of charge by the state, and therefore the law was discriminatory and prohibited under the clause of the 14th Amendment written in invisible ink.
There is a lot of excitement in the air as Republicans now have control of both houses of the legislature in 33 states and the trifecta of state government in 26 states. Come January, there are endless opportunities for conservative activists to push prudent policies in many state legislatures they worked hard to elect.
Just remember: It will all be meaningless, because the courts will engage in civil disobedience and nullify everything.
With Republicans controlling the federal government and most state governments, Democrats will make their last stand by dispatching the ACLU to encumber every immigration enforcement law and administrative action, every election integrity reform, every religious liberty law, and every abortion regulation in court. The consequences of the courts will be even worse, because we will only be playing defense.
This is where Congress and Trump come into play. In the first part of this series, I laid out the imperative to harness this newfound political power and act on judicial reform. Now I’d like to lay a general foundation for what such reform would entail and the results it would produce.
Although there are three branches of the federal government as it relates to public policy, the legislature was supposed to be the strongest branch, while the judiciary was envisioned as the weakest. Article III of the Constitution — creating the judiciary — is the shortest, drew the least controversy at the Constitutional Convention, and makes clear that the power of the judiciary is built upon congressional power, not the other way around. In fact, as I note in chapter 9 of “Stolen Sovereignty,” the courts have no jurisdiction beyond what Congress ascribes to them, and that was implicit in the Judiciary Act of 1789.
Congress must make it clear that a puny lower court judge does not have the power to steal the sovereignty of the American people and overturn voter ID, enable non-citizens to register to vote, or encumber every immigration enforcement law in endless litigation. While it is hard to go from 0 to 100 in moving the balance of power back from the courts to Congress and the states in one administration, here are some ideas Congress and the Trump administration must at least explore:
Article III, Section 2, Clause 2 of the Constitution explicitly grants Congress the authority to regulate and limit the appellate jurisdiction of the Supreme Court. The notion that Anthony Kennedy can redefine marriage and sexuality or grant citizen rights to illegal aliens — and there is nothing Congress can do to stop him — is simply ignorant. As I note in chapter 9 of my book, even John Marshall agreed the high court has no jurisdiction other than what Congress grants it (except for a few spheres of original jurisdiction established in Article III).
While Congress must respect any judgement granted to a particular plaintiff, the legislative branch has the full authority to cut the legs out from under the decision by preventing it from becoming precedent. Ted Cruz, R-Texas (A, 97%), introduced such legislation on the definition of marriage following the Obergefell case, denying the judiciary authority to overturn state marriage laws.
It is an utter dereliction of duty for Congress to not explore some limited version of regulating the jurisdiction of the high court in light of both the recent problems we’ve had from the courts and the clear mandate Congress now has. Even those who were reluctant to exercise this power in the past must recognize that we are now at the brink, with courts undermining the very foundation of our sovereignty and civil society.
While Congress wields tremendous power over the Supreme Court’s jurisdiction, it completely owns the lower courts. Congress can make, break, divide, or regulate them at will. After all, Congress created them. As part of the enumerated powers of Congress in Article I, Section 8, and the Judicial Vesting Clause of Article III, Section 1, the legislative branch has full authority over the creation of the “inferior courts and tribunals.”
As Edmund Randolph, the very first attorney general of the United States, said, “The Supreme Court, though inherent in the Constitution, was to receive the first motion from Congress; [and] the inferior courts must have slept forever without the pleasure of Congress.” How, then, could it be that a random district judge is accorded the full authority to place what is essentially a judicial veto on any piece of legislation passed by a state or Congress? Even if one believes in robust judicial review at the Supreme Court level, it simply makes no sense that a creation of Congress has that authority or that, to the extent they have grabbed that authority, Congress cannot exercise its plenary power to protect the states.
At the very least, Congress can strip lower courts of this power on a few critical issues that are manifestly within the powers of Congress and the state anyway. This would require the leftists to succeed in getting an appeal directly to the Supreme Court to overturn the will of the people. Given the Supreme Court’s case load, even a liberal-leaning high court would not have the practical resources to overturn every conservative policy from every state.
A compromise on this idea is to require that any judicial review, to become binding precedent, must be supported by a super-majority of the Supreme Court or by a unanimous opinion from an appellate court (if the high court doesn’t rule on the case). Why should a simple majority of a deeply divided panel of unelected, life-tenured judges be able to override the majority of an elected Congress or state legislature? If we are going to place the judiciary atop the food chain of government, at least require the institution speak with one voice.
In my book, I lay out the precedent and legal case for subjecting judicial review to a super-majority. And once again, if some conservative legal eagles feel too squeamish about messing with the “high court,” at the very least, they can apply this reform to the legislatively created lower courts. Otherwise, given the orientation of the lower courts, liberals will have the ability to shop for a district judge and get any two liberal circuit judges in most parts of the country to shut down the states on almost every important issue. This is happening now. And remember, most cases don’t make it to the Supreme Court.
So what if the lower courts or the Supreme Court were limited in its jurisdiction? Where would plaintiffs file suit? In state court. The advantage of having state-level courts is that most of them are subjected to some form of elections, term limits, or age limits. Thus, if the legal profession wants to rewrite statutes, redefine the Constitution, and remake natural law and fundamental rights, there is recourse for the people.
According to a recent analysis conducted by a sexual identity legal group, which analyzed 127 state supreme court cases dealing with the homosexual and transgender agenda, state courts that are elected are much less likely to issue rulings that favor that agenda. While this left-wing group decries its findings, it inadvertently stumbled across the truth. Imagine if state courts had the final say in all the cases without meddling from the federal judiciary. That would raise the specter of elections for state judgeships even more and allow the people to mobilize. So at least if we are confronted with social transformation, it will have the consent of the people.
The judicial branch promulgates its rules and procedures governing the issuance of injunctions and applying precedent with lower court rulings via the Federal Rules of Civil Procedures. Once again, from where does it derive this authority? From Congress. Ever since Congress passed the Rules Enabling Act in 1934, the federal judiciary has enjoyed a free ride in making its own rules. There is no reason Congress cannot reclaim some authority and place barriers and regulations on the ability, scope, and reach of lower court injunctions and precedents and the ability to, for example, imprison people like Kim Davis for upholding state law and adhering to her religious beliefs.
One of the reasons the Framers of the Constitution discounted the concern of the Anti-Federalists that the federal courts would become the supreme authority and remake our society — as they are indeed doing today — is because they were given no enforcement mechanism. The federal judiciary relies on the executive branch to send in the marshals and enforce its decision. Thus, our Founders anticipated that if the courts engaged in absurd behavior (say, redefining marriage or sexuality), the other branches would laugh them off.
In the case of Kim Davis, it was the executive branch that sent out the marshals to arrest her when the Republican-appointed federal district judge in Kentucky issued a bench warrant for her arrest. Congress could prohibit funding for the arrest of any state official who asserts religious liberty rights. That way the state would have to enforce the judicial tyranny willingly on itself by sending in state troopers to execute the arrest.
Congress must explore this option when the Supreme Court likely issues its ruling mandating transgenderism on the states in the Grimm v. Gloucester County School Board case. For example, it could prohibit any federal action against school officials who refuse to allow boys in girls’ private dressing rooms.
The geographical jurisdiction of the appellate courts was not etched into Mosaic law. They were created by Congress. At present, states like Arizona are getting crushed by the Ninth Circuit and North Carolina by the Fourth Circuit. There is no reason why Congress can’t show a few radical circuits (starting with the Ninth) who is boss. Congress can expand the size of these courts and pack them with originalists or change their geographic jurisdiction and free Arizona from the clutches of the Ninth Circuit.
There is no part of the Constitution that has been adulterated and used as a tool for social transformation by the courts more than the 14th Amendment. Yet the irony is that Section 5 of the 14th Amendment (and the 13th and 15th Amendments as well) grants Congress — not the judiciary — plenary power to enforce those provisions over the states.
It’s time Congress push back by invoking Section 5 and challenging the courts legislatively on issues where they misinterpret the 14th Amendment. It will have to do this on issues such as birthright citizenship for illegal immigrants. Sure, the courts will counterpunch, but they are not superior to Congress. And the more Congress awakes from its slumber and actually defends its turf, the more the courts will be reluctant to usurp power.
This is just a sampling of ideas Congress can and must explore to end this constitutional crisis of judicial supremacy — a crisis that is crushing the states, producing social transformation without representation, rewriting statutes and the Constitution, and redefining the most immutable laws of nature.
The overarching point is that Congress is king, not the courts. As James Madison asserted, “In republican government, the legislative authority necessarily predominates.” At best, they are equal in their respective spheres. But the notion that any district judge could just redefine marriage and sexuality, overturn sovereignty laws, mandate funding for Planned Parenthood, or terminate the photo ID requirement at the polls — and that there is nothing Congress can do about it other than confirm better judges or amend the Constitution — is a mindset unbecoming of a free people. We can and must do better.
 “[T]o one who is especially interested in the judiciary, there is surprisingly little on the subject to be found in the records of the convention.” Max Farrand, The Framing of the Constitution of the United States (1913) (New Haven, CT, and London: Yale University Press, 2013), Kindle edition, location 1497.
 Justice Marshall of all people made it clear that Congress was exercising its “exceptions and regulations” power in 1789 to limit the scope of the court’s jurisdiction. Durousseau v. United States, 10 US 6 Cranch 307, 314 (1810): “When the first legislature of the union proceeded to carry the third article of the Constitution into effect, it must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court. It has not, indeed, made these exceptions in express terms. It has not declared that the appellate power of the Court shall not extend to certain cases, but it has described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.”
 Edmund Randolph, “Report of the Attorney-General to the House of Representatives,” December 31, 1790; AM. State Papers, vol. 1, Misc. No.17 (1790) 34n. 6.
 In Katzenbach v. Morgan, 384 US 641, 651 1966), the court said “Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.”
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.