Much has been written and will be written on the selection of a justice to replace Antonin Scalia on the Supreme Court. But just as the President is only the most visible exponent, the tip of the iceberg of the executive branch, there is far more to the federal judiciary than the Supreme Court. And while Mr. Trump will inherit one Supreme Court vacancy, he will inherit an estimated 110 vacancies throughout the rest of the federal courts, allowing him and his Republican allies to reshape the judiciary with scores of lifetime appointments.
President Barack Obama only inherited 54 such vacancies from his predecessor, President George W. Bush, yet Obama was able to appoint 40% of the federal judges and flip most of the circuits from red to blue, with the majority of the 673 district judgeships and 179 circuit court judgeships currently being Democratic appointees.
Yes, the focus is on the Supreme Court, but in important ways the lower court appointments are more important. The Supreme Court takes some seventy cases a year. By contrast, in 2015, nearly 400,000 cases were filed in the 94 federal district courts and some 55,000 in the 13 appeals courts. (In addition, almost a million petitions were filed in federal Bankruptcy Court.) For 99 percent of civil and criminal cases in the federal system, these lower courts are the end of the line.
This rests a great deal of power in federal judges to direct the enormous power of the State. Like Supreme Court justices, they are elected and appointed for life. Theirs is the final word in almost every federal suit; they are rarely second-guessed.
But about seventy times a year, out of half a million cases, the Supreme Court reviews decisions of the federal appellate courts. This is not such a great thing. Once upon a time, all federal judges were accountable to the US Constitution. Now they are accountable only to the Supreme Court. Like the captain of a great ship, the Supreme Court charts the course for the entire apparatus of the federal judiciary.
Now the great ship now has no direction. It corrects course unpredictably through varying degrees of judicial deference to the popular mood, and the popular mood prefers a lively, expansive dialogue on the invention of new rights rather than Constitutional rulings on limited powers.
And yet the primary role of the federal judiciary is to limit governmental overreach. Federal agencies exist to make rules. That is what they do. They make rules, and now that they are frequently armed, they enforce them.
The Roberts court is committed to judicial restraint, but sadly, this does little to reestablish the limited powers the Framers set forth. Before, judicial restraint meant not legislating from the bench. For the Roberts court, judicial restraint means deferring to administrative rules.
The alternative to activist judges is not deference to federal agencies. Much better to clear the field! Use the Constitution as it was intended, as a framework for powers, not a petri dish for causes célèbres. Let the community organizers stay in their community. Strip administrative agencies of the police powers they accumulate through “judicial deference.” Restrain government excess; do not “defer” to it.
In particular, do not defer to government growth in the business of “rights.” When the Constitution was paramount, separation of powers was taken seriously and limited government was implicit in decisions. For some 50 years now, the Supreme Court has shifted the ground under its decisions from limits on government power to the invention of new rights for individuals and, increasingly, proliferating “identity” groups.
Whether it’s liberal justices creating new rights, or conservative justices deferring to federal agencies, lost is the notion that the entire social engineering agenda is outside the Constitutional authority of both the courts and the executive.
“That government governs best which governs least” captures well the problem of the comprehensive state. But it does not have a corollary in the courts: the vastness of the federal government ensures that our courts will have their hands full for years to come simply telling federal agencies to mind their own business.
Sylvester is an entrepreneur with a background in chemistry, law and environment, as well as being a legendary birder.
Check out some other articles from Sylvester Connor:
Federal Courts and Southern Toilets
Time for a Protestant on the Supreme Court