Extreme leftists such as Reps. Rashida Tlaib, D-Mich., and Alexandria Ocasio-Cortez, D-N.Y., were elected to the House of Representatives this year. They have a lot of radical policy ideas they’d love to see enacted, but the reality is that they are powerless to implement any of them as mere individual members of Congress. But a dangerous and erroneous premise has persisted in our political system that if somehow those individuals got appointed to federal judgeships, they would have the ability to unilaterally enact any policy they choose by granting legal groups standing in court cases – and have that decision be regarded as the law of the land. This is a fallacy most conservatives in media have acquiesced to, and it’s time we reverse this dangerous way of thinking.
Before discussing some recent radical court opinions, let’s take the absurdity of judicial supremacism a step further. We now see that a single district judge holds more power than the entire legislative and executive branches together. The House could pass a policy with 435 votes, the Senate could pass it with 100 votes, and the president could sign it into law. Even if that stands for 200 years and is backed by 200 years of case law by the judicial branch itself, we see that, at any moment, a single judge can have his allies bring a political case before his court, and his ruling in that case would have the effect of unilaterally nullifying the 200-year-old law. Then we are told by even “conservative” pundits that this is the law of the land until and unless it gets overturned by a higher court.
It’s time we dispel that myth and begin delegitimizing these decisions the same way we would do as a body politic against the other branches of government when they manifestly violate their powers.
Here are just a few examples from the past week of how lower courts are altering the course of our country:
Dan Cadman, a former ICE agent and fellow with the Center for Immigration Studies, noted in an email to CR the unprecedented nature of this directive:
Judge Brinkema’s off-the-cuff comments have no place in a court of law, of which she is a servant. It is not for her to question either the judgments of the Congress, which enacted the laws relating to felony re-entry after removal, or the executive branch in deciding which cases to prosecute. In fact, they go so far beyond acceptability as to raise the question of whether she should recuse herself from all cases involving criminal prosecution of immigration cases in her court. Judge Brinkema’s attitude is exactly why so many people in this country are beginning to look upon the judiciary — supposedly the “nonpolitical” branch established by the Constitution — in exactly the same jaded way that they look on the other branches of government today.
Nothing else matters in our Republic until this question of judicial supremacism vs. constitutional separation between all three branches is answered. We need to go back to the fundamentals of the role of the courts and the other branches in resolving constitutional questions. (You can listen to my podcast series on this here, here, here, here, here, and here.)
At some point, the problem is no longer the judges; it’s the other branches of government and all of us collectively that are the problem. If you tell these radicals that their every utterance will be regarded as “the law of the land” and that even if the Supreme Court overturns them, they can rule similarly in another 10 cases and restart the clock while permanently altering the trajectory of politics in America, why wouldn’t they do it? The real question is, why do conservatives and elected Republicans tolerate this nonsense?
The notion of judicial supremacism has grown so dangerous and the courts loom so large that the president as well as a number of states are being urged by conservatives on various policies not to even take action, knowing that the courts will veto them. But why don’t conservatives work on putting the courts on notice, rather than putting the other branches on notice over a fictitious judicial veto?
In the past, it wasn’t as important as it is today to resolve this question of who has the final say on political issues. Political disagreements didn’t spill over into legal fights on every issue. Today, what we believe to be an inalienable right, the judicial culture believes to be racism. What we believe is the opposite of a right, they believe is enshrined in the Constitution. What we believe is a federal power, they give to the states; what we believe is a state power, they give to the feds. The divide can no longer be bridged.
Putting all our hopes in another Supreme Court vacancy while continuing to legitimize judicial autocratic rule is a recipe for undoing what’s left of our republic.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.