Judicial Reform: Dangerous, Outrageous, and Totally Irresponsible

I love the law.

In my first post on TCC, I made it clear that I am, above most things, an academic. I love almost everything about what I’ve spent every day of the last eight years doing; since entering law school, my appreciation for philosophy and the rule of law has only deepened, in spite of all the late nights, liberal professors, and Red Bull-induced freakouts that occasionally end with me sleeping standing up in an elevator. (Happened. Two nights ago. Wouldn’t lie.)

Along with that appreciation has come a deep respect for, and a tireless defense of, law as a profession. The lawyer jokes are funny until they’re not jokes anymore; it’s incredibly easy to joke about the ethics, business practices, and overall brainpower of lawyers because (get ready for a dramatic declaration) lawyers are just about the easiest targets out there. Why? Because you don’t get it. I should say, you don’t get all of it; what people see when they’re exposed to law and the courts is a tiny, tiny, miniscule–nay, wee–fraction of what actually happens when a controversy becomes a case and is heard before a judge. You’ve not seen the work ad infinitum that goes in to researching and presenting a case.

I believe this is why so many people applauded Newt’s comments on reforming the judiciary during Thursday night’s debate, and why my head is now pounding through a perpetual caffeine overdose.

There I was, fresh out of my income tax final and looking for something to kill. (Only not. But…kind of. It was hard.) I parked myself in the library and settled in for a solid fifteen minutes of procrastination before snuggling up with my crim pro text and a man by the name of Miranda. I started flipping through my timeline and came across a clip of Newt Gingrich pontificating on what he believes is an overstepping in perpetuity of the judiciary. Check out the clip, then read on.


This is pandering in its worst form, especially his comment at the end about law schools fostering in their students a belief that they can dictate the law and lord it over the rest of the American people. I won’t call him a liar on this one, but I will call a spade a spade with regards to his debate strategy.

This segment sent me into a slow burn, and here’s why: if we start holding courts accountable to Congress for decisions in controversial cases, who, then, are we giving final authority over those controversial decisions? Congress? The same Congress who passed eighty five million pages of garbage and called it “recovery”? The same Congress who danced around a budget for hundreds of days? The same Congress who appointed Justices Sotomayor, Kagan, Ginsburg, Stevens, Breyer, Marshall, Harlan, White, and Souter to the Court? HMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM?

We have Congress for a reason. We have courts for a reason. Some courts are more reliable than others; the 9th Circuit, for example, is notorious for being overturned on cert. Even assuming, arguendo, that Congressional oversight would fix all of our problems, would it be worth it? I think that it would not. In his response, Newt makes much of Dred Scott, Elk Grove (via the 9th Circuit) and other cases that, for one reason or another, are not looked upon with particularly high favor. Those are the bad cases, the cases that make you cringe–whether it be from the effect on the people, or from the reasoning that went into the holding. The thing about cases like Dred Scott, though, is that they were overturned. The Court looked at what happened, and went in a different direction. This is how it’s supposed to work.

Imagine for a moment a world in which appointed judges were required to bow and scrape before elected politicians every time a “controversial” (whatever the hell that means) decision came down. Can you imagine having to sit before the next Rick Santorum and explain why you ruled consistently with relevant provisions of Casey v. Planned Parenthood? Or Griswold? I’d rather clean a toilet with my own toothbrush than subject myself to the penumbras that would surely emanate from that “hearing.” Not to mention the effect the prospect of a hearing would have on the deliberation process; especially at the appellate level, judges and clerks should not have to worry any more than they already do about who their decision might send into a pearl-clutching fit of the vapors.

It’s true: the courts do overstep. Judges legislate from the bench, that that makes for results that are beyond frustrating. However, our system of checks and balances makes it possible to fix what even the courts manage to screw up; the legislature has the power to write and rewrite legislation, and the executive has the power to check the overchecking of the legislature via veto. To rip the power of interpretation away from the courts and settle it into the laps of career politicians would be beyond reckless.

I’m almost a lawyer; when I finally get to where I’m going, it will be my job to read the law, interpret it (which includes a historical analysis, so I guess we’re all historians now, aren’t we Mr. Gingrich?), and apply its principles to the hand I’m dealt.

It will not be my job to “read the American people,” and it will most certainly not be my job to pervert the law to fit the standards of a man whose job it is to put votes before principle, and acceptance in the soundbite culture before the rule of law.

Amy Miller // Michigan State University School of Law // @Amy_vrwc



  1. The more I learn about Newt and the more I learn about who he agrees with the more I see him as nothing more than a RINO. As far as judges are concerned. The way they judge today is by comparing to previous cases, correct? From what I understand this was not always so. Before President Woodrow Wilson, the judges, for the most part at least and on average, judged against the constitution and not against previous cases. Would you support going back to having judges judge a matter against the constitution and not against previous cases?

    I have also read that state laws are being infiltrated by international law and that judges are taking international law into consideration for their cases. Have you heard of this? If so how bad is it? And if so, what can be done to correct this?

    Thank you,

  2. @Manuel:

    To answer your question, yes: judges use previous cases to rule on current controversies. I wouldn’t support going back to what you would consider a pure constitutional analysis in every new case because, in many circumstances, this would be like reinventing the wheel every time you decided to ride a bike. Judging current cases via existing law (both statutory and judge-made via stare decisis) upholds the idea of legal standards. For example, case law tells us that silence doesn’t constitute a waiver of a suspect’s Miranda rights; that’s the rule. Rules and standards are good-they help us avoid arbitrary, entirely fact-based decisions, and they set guidelines for lawyers. (We may be collectively the most talented group of people on the planet with regards to BS, but that BS has to originate from somewhere!) Many of the rules judges use today are based in a constitutional analysis anyway, so going back to square 1 isn’t necessary. I definitely support staying true to the principles of the Constitution (which means relying heavily on textual analysis), but I don’t think we have to ignore precedent to do so.

    In re. international law, yes, many judges are looking to international law to help guide their decisions. I think it’s an interesting exercise in jurisprudence, to make a comparative analysis, but I don’t think judges should ever use international standards to guide domestic decisions. So many of those standards flow from completely different premises, and I think that using standards that originate from a place not consistent with our founding values is risky business. As far as stopping it…I’m not sure. We may have to rely on hierarchy in the courts to deal with it.

  3. Thank you for your thoughtful reply.


  4. Brief correction via my pal Evan Pokroy

    Congress confirms. Whoops. As Evan put it, I blame the lack of pillows in the elevators at the law school. #finals, or something.

  5. Lawyers talking to lawyers is fine, but eventually lawyers become a self-serving cult that is closed, money-aimed and greedy. Not a lawyer, but a receiver (not a customer) of the laws that tend to go beyond the boundaries of our constitution and its structure. Newt has tapped the barrel spigot of legislative law design and rulings that are basically anathema to many. Secondly many law decisions consider the few at the expense of the many. There is no democracy in law decisions, but a unilateral decision that tends to favor the judge more so than the people effected. Law decisions need to provide protection and safety for everyone who live within the law, but too many decisions only favor a small group who are at opposition with tradition, cultural structure and the desire of the majority. There are so many examples of questionable rulings made unilaterally to satisfy the single voice at the expense of the majority. Likewise the judicial branch is part of the government design. It is just one co-equal partner along with the legislative and executive branches. It is not there to consume the mandates of the other two branches as it appears to do so often. This triad structure needs better definition in regards to design, responsibility, tenure, function and relationships. Until such is done the judiciary will always take the higher road than many believe it should have!

  6. Daniel Davis says:

    I certainly hope more conservatives continue to realize that Newt is unfit to be the leader of our party. It should alarm us that a man of such gross ideological inconsistency toward conservative orthodoxy is leading in many polls. Having said that though, I do sincerely agree with the spirit of his remarks on judicial supremacy.

    “If we start holding courts accountable to Congress for decisions in controversial cases, who, then, are we giving final authority over those controversial decisions? Congress?”

    This is a serious question to consider, but I think we need to approach it with more indignance toward the grave injustices that judicial activists have committed. We have to look at cases like Roe v. Wade. In this case, the judiciary created abortion rights essentially out of thin air, and it did so without defining the point at which human life begins. This was, as dissenting Justice White wrote, “an improvident and extravagant exercise of the power of judicial review that the Constitution extends to [the] Court.” Now it is true that the judiciary’s power to interpret law must be duly respected, but Congress also has a moral obligation AND the constitutional authority to intervene arbitrarily when the judiciary has overstepped its bounds (Exceptions Clause, Article III, Section 2). Congress is obligated to protect life under the 14th and 5th Amendments, and because Roe v. Wade did not define when life begins, Congress would be constitutionally justified in intervening. For Congress to helplessly stand by while the judiciary invents new laws would be for Congress to abdicate its sworn duty to uphold the Constitution.

    I’m no personal fan of Congress, but when you bemoan Congress as a terrible decider of “controversial decisions,” I would turn the question back at you and say: What is the present alternative that we are living with? A judicial oligarchy of nine unelected judges, I would suggest to you, is far more unfit to make arbitrary decisions than the Congress. The Congress is not just a body of “career politicians” — Congress is, in essence, the people. If there is any deference to be had among the branches of government, it ought to be toward Congress, the body who represents the people.

    “To rip the power of interpretation away from the courts and settle it into the laps of career politicians would be beyond reckless.”

    What I find to be far more reckless is the judiciary branch getting away with murder, ripping the power of legislation from the people. Things have gone too far, and Congress must step up and provide resistance.

  7. Guys, I’m not saying the judiciary has always acted nobly, or that Congress should never exercise the constitutional power it’s been given over the courts. But seriously, by allowing Congress to challenge decisions on individual cases in ways beyond writing new legislation, what would we really accomplish? We’d be trading a bank of Nine for a bank of 400 some odd politicians (or less than that, if it went to some sort of committee.) Please, explain to me how this would fix a damn thing.

    You may not agree with every decision the SCOTUS has made, and every SCOTUS decision may not come in line with conservative principles, but it would be a non sequitur to say that this means that the court did the wrong thing.

  8. It is my understanding that we have three branches of government for checks and balances. Correct? The legislature writes the laws, the executive branch enforces the law and the supreme court interprets the laws. The problem we are seeing as of late is the fact that once the supreme court rules on something, it is considered settled. The fact that the supreme court can not enforce the law is ignored. Giving the executive branch a check in power over the courts. Am I totally off base here?

    Oh and as far as the lawyer jokes go, as long as lawyers are getting multi-million dollar judgments for people spilling hot coffee on themselves you are going to be the butt of the jokes. Just part of it I guess. Great article by the way!

  9. You have overstepped on this and your reading of Gingrich…It is this kind of overstepping that Gingrich, me and other complain about…

    If you will take note – No one complains about most Court decisions.

    Mostly the complaint come when we see personal’s Court bias in Court decisions. (the 9th circuit has been consistent in expression of their bias. That is why they are often overturned – sooner or later….. Ron

  10. Kerry Davis says:

    I’m not sure what there really is for Ms Miller to object to here. All the federal courts except for the Supreme Court are already created and maintained, their size and jurisdiction determined etc, by Congress. So in fact, any court that Congress seriously disagreed with could just be abolished if Congress so chose. Congress even sets the size of the Supreme Court and has powers to limit its jurisdiction in certain matters as Congress decides, NOT as the Supreme Court decides.

    Yes the courts are supposed to “interpret” the law, but there’s hardly a dearth of examples where the courts just go off on their own and make it up as they see fit. It needn’t be an extreme example, either. Judges often show sympathy to “the poor” or “the downtrodden” when by law they don’t have it coming. But Congress makes the laws that the courts are supposed to interpret, and if Congress thinks some court got it wrong, who better to know and to say – and to do something about it – than Congress? Relying on a higher court to fix such a problem can border on pollyannish especially when higher courts and even the Supreme Court get something wrong, as determined by – who else? – We The People, and through us our elected representatives in Congress.

    At best, Ms Miller’s contention would seem to mean that if someone has a decision incorrectly made against them after perhaps expending a lot of time and money to get to that point, and then Congress re-writes the law to clear up some presumably innocent misunderstanding by the court, the person either has to start all over again to get the right decision, or go to the NEXT level of appeal (if there is one) and hope THAT court now reads what Congress wrote correctly. Either of which could easily double – or more – the cost and time already expended.

    I suppose it might be easy for lawyers (and prospective lawyers) and judges to view such things at a distance and figure that it’s all just part of the process and heck if it DIDN’T take time and money how do THEY make THEIR living but for the people whose lives and livelihood rely on these decisions, it’s a more direct, immediate, and serious issue.

  11. Amy Miller says:

    @Scott…Hmmmm. The system of checks and balances sort of happens organically between the three branches. If the legislature is unhappy with a court decision, it is free to draft amendments to legislation, draft new legislation, etc. Once the SCOTUS rules on something, it doesn’t have to be the end of the story.

    @Ron…so, you can see the system at work. The 9th is consistently overturned–and it’s no small deal to file for cert and have it granted.

    @Kerry Davis…You’re saying that a body of 400-odd legislators, all motivated by the potential for political gain, saddled with an obligation to the party for re-election funds, in a soundbite culture, is going to sit down and have a rational discussion over minutiae in the law they crabbed and moaned and fought over? If you’ve ever actually looked at the entirety of the legislative history of a major bill, you know that it consists of a zillion pages of pure garbage–testimony before the body, drafts, research, etc. How is it possible to tease out exactly what that body meant? Talk about a “Pollyannish” expectation. Not to mention the invocation of the law of unintended consequences–it’s impossible to predict every single result of every single piece of legislation. This is why we have the courts–to deal with the mess the legislature inevitably makes.

    At any rate, I find it interesting that you put the job security of “the people” above mine. What makes me an outsider? What’s the standard for being a member of “the people” who are affected by this stuff?

  12. Kerry Davis says:

    I’m not saying that the “job security” of “the people” is necessarily any BETTER than yours, except by virtue of the simple facts that there are more of us than of you, that the decisions made by judges rarely have any direct impact on the judges themselves – or the lawyers – and that the job security of lawyers in general and of judges too basically depends on things going wrong, whereas for the rest of us it’s better if things go smoothly. And it’s not credible for judges or lawyers – or law students – to pretend to be disinterested parties.

    There’s plenty of blame available for legislators not being clear, but the plain fact is that at least in the case of federal courts and the Supreme Court too, Congress already IS in charge for the reasons I mentioned before and that’s how it was obviously intended to be from the clear wording of the Constitution.

    In the ‘game of life’ judges act as referees with the assistance of lawyers, but they were never intended to actually be determining the rules of the game on their own. The actual rules are determined by rules committees – legislatures. Referees make bad calls all the time, and in many cases those bad calls stand even as the players and the audience protest. But that should never have the effect of actually changing the rules as written.

    And a referee who makes too many bad calls, especially if they’re in the same direction, can and should be removed from the game just as a player might be for misconduct. Who decides? Ultimately the people of course. Because that’s all we have: people. Sure it goes round and round, but that’s because people aren’t perfect, and there’s no sense claiming that any one person or group of people or class of people has or should have or must have the final word. That’s utopian thinking, heaven-on-earth, which is a hallmark of hard leftist idealism.

  13. Amy Miller says:

    I’m not pretending to be a disinterested party, Kerry.

    You’re still ignoring the absolute impossibility of true, cohesive consensus in the legislature, and adhering to a false dichotomy. I’m not suggesting we ignore the “in good behavior” mini-clause of A3S1, and thus let the judiciary run wild; I’m just suggesting that we allow the judiciary to do its job, and let the legislature counter where it will.

    Besides, if we put final interpretive authority in the hands of the legislature, who gets to speak on behalf of the body? Who gets to decide what a few hundred people were thinking when they put together a particular bill? Using pure legislative intent as a method of interpretation tends to make arguments crash and burn.

  14. Kerry Davis says:

    I’m still not sure if you’re accepting or denying that in fact the legislature DOES always really have the final word, whether or not they choose to exercise it in particular cases or even MOST cases. If judges like to think it’s them keeping society from flying apart, maybe that helps them sleep better at night. But really the legislature has the same authority as a higher court. If they don’t do anything, that’s the same as a higher court letting the ruling stand. But it doesn’t mean and never has meant that they MUST defer to the courts.

    And it still sounds like you’re thinking of judges at least, if not lawyers, as somehow above or beyond the rest of the process. As if they’re not just as human as the legislators. Maybe judges don’t argue with themselves as legislators argue with each other, unless they have multiple-personality disorder, but so what? That just means you have one set of biases and preconceptions and life experiences instead of a group of them. I fail to see how one is inherently superior to the other. Simpler, sure. Superior? No way.

    You’re also probably thinking only in terms of “professional” judges at higher levels of court than most people ever deal with. Most people including myself, and I’m 52, never have to deal with a situation serious enough to involve a “professional” judge. I’m not even real confident about THEM, but the reality is that at municipal or “justice court” levels such as most people might deal with in their lives – in cases involving traffic citations, landlord/tenant disputes, etc – the “judges” may not have to have ANY formal education or training. They’re just everyday citizens placed in positions where they can restore or RUIN lives largely on a whim if they’re so inclined. In some areas they may have a week(end) of “judge school” or “judge camp” but even that may not be required and it’s often more about how to run the court(room) than anything about actual law.

    I’m also reminded of a caller to a radio show I listen to, who expressed relief that a court had ruled against some legislative decision that he thought was too extreme. His reason? “I’m terrified of power.” What he didn’t seem to realize, even after it was pointed out to him by the show host, was that the court was exercising far more singular, individual power than the legislature had. The only reason he didn’t express terror of THAT power was that, in that one instance, it had agreed with him. But it was in fact, even by his own standard, WORSE than the legislative power he claimed to fear.

  15. Amy Miller says:

    I’d respond, but I don’t know how to get it through your head that I’m not holding legal professionals “above and beyond the rest of the process.”

  16. Kerry Davis says:

    I’m not sure how else to view a claim that courts/judges should have final interpretation of laws. The only real argument you seem to have is that it’s less complicated. On that, I agree with H.L. Mencken: “For every complex problem there is an answer that is clear, simple, and wrong.”

  17. The point Newt was trying to make, and I think it’s one that needs to be made, is that the Court, too many times, does have the last say when it comes to an issue and many times it is NOT based in sound precedent or legal principle. And yet, when they make such a decision, we are bound to live by it for an untold amount of years/decade/centuries. See Wickurd or even Roe. Now, the point you’re making is that it would be no better to give that power of final say to the legislature, as they are just as prone to make bad decisions, and with that I agree.

    However, here is the difference. With the legislature, I have recourse. I can vote them out of office on a fairly regular basis..or at least try. What is my recourse when a judge or justice loses his mind and makes bad decision after bad decision? I can do almost nothing, except wait until said judge/justice dies.

    Here is the point. If the judiciary wants to act like legislators, it’s time to start treating them like legislators. I also don’t agree with giving Congress the power to basically have show hearings about judicial decisions. But what I do support are the end of life time appointments. The argument that said appointments keep the judiciary objective is nonsense at this point. They are as political as Nancy Pelosi. Treat them as such.

  18. Kerry Davis says:

    Well put, Rich. I was emphasizing more the theoretical aspects but the practical side needs to be included too. Another thing to keep in mind is that having judges “interpret” things their way is one of the left’s favorite methods for getting their way without having to actually win elections and pass laws. Judges should really only be applying the law, not interpreting it.


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