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The Congressional Accountability for Judicial Activism Act (H.R. 3920)

This entry is in response to this House bill, H.R. 3920. Actually, it's in response to gsan's argument that perhaps there is a need to limit the Supreme Court's power of judicial review. If you're on my friends list, you can read it here. I won't paste his words unless he gives his permission, especially since they were originally comments in a friends-only post while this one is public.

For those of you not familiar with the Bill, if pass, it will give Congress the ability through a 2/3 majority the ability to overrule decisions of the Supreme Court if they pertain to the Constitutionality of actions of Congress.

108th CONGRESS; 2d Session

H. R. 3920
To allow Congress to reverse the judgments of the United States Supreme Court.


March 9, 2004
Mr. LEWIS of Kentucky (for himself, Mr. DEMINT, Mr. EVERETT, Mr. POMBO, Mr. COBLE, Mr. COLLINS, Mr. GOODE, Mr. PITTS, Mr. FRANKS of Arizona, Mr. HEFLEY, Mr. DOOLITTLE, and Mr. KINGSTON) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To allow Congress to reverse the judgments of the United States Supreme Court.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Congressional Accountability for Judicial Activism Act of 2004'.


The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--

(1) if that judgment is handed down after the date of the enactment of this Act; and

(2) to the extent that judgment concerns the constitutionality of an Act of Congress.


The procedure for reversing a judgment under section 2 shall be, as near as may be and consistent with the authority of each House of Congress to adopt its own rules of proceeding, the same as that used for considering whether or not to override a veto of legislation by the President.


This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.

The difference between the ratio of power between the courts and the rest of the government can be justified through an explanation of how the courts are created and how issues are brought to the courts.

First, the members of Congress are directly elected, and somewhat similarly, the president is elected by the electoral college which is influenced by the populace of the states. In contrast, the appointees to the court, although not elected, are appointed by the president and approved by the Senate, which means they have to pass approval from both branches, which are often diametrically opposed with the staggered election schedule. Therefore, the judges must be attractive and worthy enough in their legal background, their dedication to the law, their partisanship or lack of partisanship, as well as their stance on issues. Because the process of selection for a judgeship is so difficult, I would argue that the caliber of people who attain that goal are above in merit and abilities their directly elected counterparts. Even the lower level federal judgeships are subject to the approval of Congress. There are obvious historical exceptions to this rule, but for the most part, those who are placed in the court are more heavily scrutinized than anyone else in government.

Secondly, because judges serve lifetime terms, they are less sensitive to the fluctuations, or what could better be called fickleness, of the electorate. The four year terms of both Congressmen and the President force those who should be serving their people and their government to start campaigning for their next election from the day they set foot in office. Even if they don't immediately start raising funds, they are constantly weighing their actions not on the merits of each individual issue or piece of legislation but rather on how positvely or negatively their actions will affect their ability to be re-elected. Time and again we see Congressmen voting conversely from their platforms and the promises they made because their polling data shows 53% of voters (and very few people vote) are against it, even if said legislation is the "right" thing to do or would benefit his/her constituency in ways they are not aware. Or what's worse, they abstain from voting on a certain bill because the issue is too controversial, thus rending not just the Congressman's vote, but my vote absolutely powerless, useless.

Even if a Supreme Court Justice holds values that are diametrically opposed to mine, I will feel confident that s/he isn't supporting such ideas because it will lead to re-election or secure a lucrative position after stepping down. Because their jobs aren't on the line with every decision they make, Supreme Court Justices are least able, and usually willing, to make decisions based on the law itself, the merits of the case, rather than on what the popular opinion of the moment dictates.

Since we're on public opinion, I'll address quickly that the majority of Americans, voters and nonvoters alike, base their decisions on either irrelevant or insignificant reasons. Voting for a person because Candidate A is a good speaker or has never been caught cheating on his wife or likes ACDC, in my mind, are ridiculous, but people do it, all the freakin' time. Television newcasts and advertising have the ability to instill an emotion in a person with images and music and repetition that lead to a behavioral response, i.e. voting for or against someone, without really giving you the information that makes such an emotion valid.

The leaps that avoid logic altogether leave me bewildered as I watch voters deride a candidate for not being "tough on crime" when they don't even really know what being "tough on crime" entails or have any idea about what matters, the way the candidate have voted or acted in the past. So while I have no respect for public opinion, I do fear it, because it determines the course of history within a voting democracy. Therefore, I don't mind putting a little extra padding between public opinion and how it affects law which in turn affect me and how I live my life.

The last thing that you need to examine when looking at the power-ratio of the Court to the legislative and executive branches is the frequency with which they actually exercise this power. In order to even get a case to the Supreme Court, it either has to be directly in the Court's jurisdiction or the case has to work its way up the ladder of the courts, which often takes years, being tried and retried every step of the way until at last it has a chance of being heard of the Court. The Court still has to agree to hear the case, and in the majority of cases, it simply accepts the ruling of the lower court. Even though the Supreme Court holds immense power over certain laws, the process by which the Court can exercise said power is in its nature a filtering process that narrows the areas in which the Court may wield its power.

And if you'll look at the rulings of the Court, you can read how thoroughly the elements of the case are examined, from the writing of the law to its scope to its constitutionality, and on each point, even if I disagree, I can see how their decision was made and I find it reasonable, respectable. Now, compare that to some of the main reasons why Congressmen and Presidents make their decisions: partisanship, religious doctrine, re-electablity, and fundraising.

It's almost like an equation. While courts have significantly more power in interpreting and influencing, the screening for such people who will eventually hold that power is enormous while the windows in which they will exercise this power are very narrow. All of this is stuff you've read in the past, but it's not just rhetoric that has been reforged in our brains as an acculturation process. I believe it, not just because I've been told by school books to love my country and to love my government, but because I've read the rulings of the Court and seen how the Justices can rule individually rule on both sides of an issue but for very different but equally valid reasons.

If you're worried about a power imbalance in the government, I'd turn instead to the executive branch and the hundreds of bureaucratic departments that wield the power of law but are not subject to limitors of terms and elections. While I do think that such agencies serve a valuable and irreplaceable purpose in a modern government, I fear their unchecked power to make or break our economy, determine the censorship of our broadcast media, and create crippling office and worksite codes. If you are still of the opinion that limitations should be placed on the Court's power of judicial review, you should instead write your congressman to support a Constitutional Amendment, not just a bill or a resolution that the Court would consider invalid because it goes against what they consider to be their Constitutional responsibility and power.

Please post comments. I welcome your opinions.

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