The Supreme Court’s had a busy week, with blocking Texas abortion clinic regulations, upholding ObamaCare, depriving the people of their right to vote on another contentious social issue, and upholding a certain method of capital punishment. If there’s any silver lining, it’s that public anger may finally push us to get serious about reining in judicial activism—in doing so finally getting proactive about overcoming Roe v. Wade.
Regardless of what policy outcome anyone favors in any of these cases, some of the contortions involved set a new standard of egregiousness. In the ObamaCare case, Chief Justice John Roberts literally pretended inconvenient sentences of ObamaCare meant their exact opposite. In the same-sex marriage ruling, Elena Kagan asserted a constitutional right she explicitly claimed to believe did not exist when she was trying to get confirmed. And two dissenting judges in the death penalty case called for finding the entire practice unconstitutional, despite the teensy detail that the Constitution directly mentions it.
So far, Republican presidential candidate Sen. Ted Cruz has proposed the most comprehensive plan in an editorial for National Review. While focusing on the marriage and healthcare cases, all of his suggestions are just as applicable to abortion.
First, he proposes a constitutional amendment reversing Obergefell v. Hodges and legislation stripping away the courts’ jurisdiction on marriage cases, both of which already have direct pro-life analogues.
There’s of course the Human Life Amendment, but the process of first getting either a Congressional supermajority or two-thirds of the states, then ratification by three-fourths of the states, is a pretty tall order. So while we should still work toward building long-term support for it, more immediately I’d suggest focusing on the Life at Conception Act, which would only need a simple majority vote in Congress to formally affirm the Fourteenth Amendment rights Roe admitted the preborn might have.
Also passable with a simple majority vote, the Sanctity of Life Act would use Congress’s Article III, Section 2 authority to make “exceptions” and “regulations” to SCOTUS’s jurisdiction and take all abortion-related cases out of their hands.
Second, Cruz considers impeachment, but concludes it’s unlikely to be successful:
[T]he Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.
He’s sadly correct about that, but even if we don’t actually do it, we should still call for it, louder and more frequently than we have been. The discussion can help signal to future politicians that their constituents are not content with representatives who don’t take seriously their duty to protect the Constitution against rogue branches, and possibly even shame a justice or two—they may not care about the law, but they do care about how they’ll be remembered.
Third, Cruz proposes one last constitutional amendment, a structural reform that says if the Supreme Court insists on acting as a political body, we’ll treat them as one:
Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.
Yet we are a people who believe, in the words of our Declaration of Independence that “when a long train of abuses and usurpations . . . evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.” In California, the people said enough is enough in 1986, and removed from office three activist justices who had repeatedly contorted the state constitution to effectively outlaw capital punishment, no matter how savage the crime. The people of Nebraska likewise removed a justice who had twice disfigured that state’s constitution to overturn the people’s decision to subject state legislators to term limits. And in 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage.
Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
As a constitutional amendment, this would require clearing the same high bar the Human Life Amendment would, but its chances would likely be better because it’s a fight that far more people than just pro-lifers have a stake in. Judicial activism is a source of perennial angst for a wide variety of causes, most of which fall right-of-center and so are sympathetic to us. If this became a serious campaign, the coalition fighting for it would be massive.
To all of Cruz’s proposals, I have one final addition: take the judicial confirmation process more seriously. We have to be far, far more skeptical whenever an ostensibly pro-life president nominates someone to the bench. Souter, O’Connor, and Anthony Kennedy were Republican appointees. And as I’ve written before, both John Roberts and Samuel Alito raised red flags during their confirmation hearings when they implied excessive deference for Roe’s status as precedent. Alito has turned out to be a reliable constitutionalist; Roberts…has not.
Deeper grilling could have exposed just how deep the rot ran, as could getting rid of this absurd notion that senators and nominees have to tiptoe around whether past cases were rightly decided. And there are still too many senators who think disagreeing with a nominee isn’t enough for a “no” vote. Kagan and Sotomayor both got over sixty votes. And how many senators voted to confirm Ruth Bader Ginsburg, the most shamelessly biased pro-abort on the bench? Ninety-six.
Babies have been legally slaughtered en masse for almost half a century because the Supreme Court said we had to let it happen, but the truth is our politicians could have done more all along. If the Supremes have finally ticked off too many people on too many issues, we may at long last see our elected representatives start making up for lost time.