This kind of change would also require the political branches to look in the mirror. There could be no judicial usurpation absent cravenness on the part of elected officials. Presidents and lawmakers routinely punt the hard calls to politically insulated judges: enacting vague, elastic laws, relying on the courts to do the tough legislating — and then complaining about the way they do it. If we really want judges to limit themselves to applying law, rather than making it, we need to demand that the real lawmaking be done by the political actors we hired for the job.
If all else failed, could we eliminate defiantly willful courts? Of course we could. We are, in the end, a political society, and repeal, like impeachment, is a political remedy available in dire circumstances. But you don’t go from zero to DEFCON 1 over a bad ruling or two.
If the public were sufficiently provoked by judicial imperialism to pressure elected officials into using the less draconian tools available, behavior would change, and we’d have no cause to discuss eliminating courts as a punitive measure. Then we could explore an equally pertinent question arising from statist, rather than judicial, excess: Should we eliminate some federal courts to improve our republic? That is, do we have too many federal courts because we have too many federal laws — because Leviathan does too many things that should either be done by the states or not be done at all?
Gingrich deserves credit for forcing the vital issue beneath all of this, an issue that every GOP candidate ought to address. The Supreme Court has long purported to be the final authority on what the law is. It was one thing to take that position when the judges had a modest understanding of their role: namely, to resolve cases between litigants, without the grandiosity that would impose those rulings on every American. As Gingrich points out, however, for the last half-century, the Court has regarded itself as a permanent constitutional convention. This is the absurdity: The Constitution says it cannot be amended absent an elaborate process involving supermajorities of Congress and the states — but the courts have somehow convinced us that a 5–4 shakeout from nine unelected lawyers can do the trick.
So the question for the candidates is, who is the sovereign? Who gets the final word on what the law is? Hint: The first three words of the Constitution are not, “We the Judges . . . ”
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.