Americans must show a form of photo ID to purchase a pack of Sudafed or to engage in any major transaction. Yet according to almost every lower court — including the “conservative” Fifth Circuit Court of Appeals — states can’t use their plenary power over election procedures to require a photo ID in order to protect the integrity of our democracy. Today, the Supreme Court declined to take up the appeal from the state of Texas in a bid to overturn the Fifth Circuit’s unconstitutional opinion.
My point is not to criticize the passive decision of the Supreme Court today, but rather to demonstrate how the entire conception of the modern federal judiciary as it relates to constitutional construction and its role in law-making is irremediably broken. And while it’s important to select the best nominee to SCOTUS as possible, merely “appointing good judges” alone will not save us from the tyranny of lower courts, absent wholesale judicial reform.
In Abbott v. Veasey, the Fifth Circuit upheld most of a district court’s ruling in describing Texas’s voter ID law as discriminatory against blacks, in violation of Section Two of the Voting Rights Act and the Fourteenth Amendment. The 9-6 en banc decision, which included some GOP-appointed judges, essentially said that blacks are too dumb and poor to provide a photo ID for the foundation of our democracy, even though they would be provided with one by the state free of charge. Today, the Supreme Court declined to take up the appeal. Chief Justice Roberts noted that because the case is not fully decided (it was remanded to the district court for further adjudication), he reserves the right to grant cert to a future appeal when the issue is finalized, but took a pass for the time being.
The decision from Roberts seems reasonable enough given the workload of the Supreme Court and that none of the conservatives, including Thomas, dissented from this denial (as he has done in previous denials of cert on important issues). However, this further proves my point about the broken nature of the judiciary. The capacity of good judges to do good is not nearly equal to the capacity of post-constitutional judges to do harm.
No state should have to wait even a single day to implement such a common sense regulation that is well within its constitutional powers. Yet, liberal groups have the ability to get an injunction against basic voter integrity laws within weeks and then encumber the law in the system for years. Even if we ultimately fill Scalia’s seat with an originalist, it will take years to grant relief to the states embattled by the legal profession and the lower courts. Unlike liberal Supreme Court justices who would take any opportunity to use their majority on the high court to overturn anything they disagree with from a lower court, conservative judges are never as aggressive the other way. The notion that a lower court, which is an institution created by Congress, can steal state powers away from the state — and that decision is not swatted down by the Supreme Court immediately — is one of the many reasons why we need wholesale reform.
Even if Ruth Bader Ginsburg retires and we successfully fill both her seat and Scalia’s seat with orginalists (relatively speaking), the 5-4 majority (yes, Kennedy is on the left) would not be a full safety valve for the Constitution. So much of the anti-constitutional jurisprudence surrounding the Fourteenth Amendment has been legitimized or at least tolerated by the legal Right that cases such as the Texas voter ID law will inhibit states from doing what they need to do to protect their elections in a timely fashion.
This is why, in addition to nominating the best judges to the Supreme Court, Congress should:
- Immediately fill lower court vacancies and not wait the traditional six months to begin the process. [I’ll have more on this in a few days].
- Finally harness their Article III Sec. 2 plenary power to “regulate and except” the jurisdiction of at least the lower courts, as I advocate in my book. All lower courts should be barred from adjudicating cases overturning state election laws. Those cases should be left to state courts, which are usually elected by the people of the state.
- Pass resolutions explicitly defining the scope of the Voting Rights Act and prevent courts from using past erroneous precedent to apply anti-discrimination laws against universal voter integrity measures that are manifestly not discriminatory. The federal judiciary, especially lower courts created by Congress, don’t have a monopoly on constitutional interpretation, much less statutory interpretation. The House recently passed a similar bill with regard to regulatory litigation, barring the courts from using “the Chevron Doctrine” to allow executive agencies to bastardize environmental statutes in a way that was never intended by the legislative branch.
Most importantly, as we commence a national debate over the next SCOTUS nominee, conservatives inside and outside of Congress must utilize this focus to educate the public on the true role of the court system. As I’ve written before, even those founders who believed federal courts have the power of judicial review, understood that they are not the sole and final arbiter of every political issue. Judicial review does not equal judicial supremacy. The judiciary’s power is certainly not greater than the power of Congress, which in itself fully created the institution of the federal judiciary and has the power to regulate the court’s jurisdiction.
Many Republicans are giddy about assuming full control over the federal government and 33 state legislatures. But if nothing is done to reverse the false deference to judicial supremacy, the election will be rendered moot and the Constitution will continue to be tarnished.