by John T. Plecnik
Countless conservatives fear the quickening onset of judicial activism. Challenges that never would have passed the laugh test in days of yore are passing the 9th U.S. Circuit Court of Appeals to find sympathy from our Supreme Court. We all remember Michael Newdow, aptly named "America's least favorite atheist" by Time Magazine.
The man had the hubris to charge that our Pledge of Allegiance was an unconstitutional government endorsement of religion, due to the inclusion of the phrase, "under God." While it is unremarkable that a wannabe Perry Mason would allege anything to argue before our nation's highest court, the fact that Newdow got as far as he did is nothing less than an outrage.
Why such irresponsibility? Why does the 9th Circuit revel in issuing ridiculous decisions, only to be overruled time, and time again? For that matter, why does our Supreme Court feel the need to constantly expand the reach of the federal judiciary? Is it simply a matter of ideology? No. Our top judges are more addicted to power and attention than Bill and Hillary Clinton combined.
Today, influential, well-known judges are treated like rock stars. They tour America, giving a speech here, teaching a class there. Justice Ruth Bader Ginsburg will be visiting Duke Law at the end of January, and even our elite program is excited for her arrival. I can still remember seeing a fellow classmate wearing an "I love Ginsburg" T-shirt on Halloween. It was probably meant to be a joke, but law students and professors truly are judicial groupies.
Instead of fan mail, we write law review articles analyzing the most controversial and edgy decisions. Screaming hoards of Dukies, Yalies, and Harvard lawyers compete for federal clerkships, hoping against hope for the chance to become a judge's underpaid assistant. When the Supreme Court cites a scholarly article, the lucky professor practically swoons over the realization that one of the Supremes read her paper. The state of our profession is per se absurd.
Self-deprecation aside, legal scholars are only part of the problem. When a mere trial court judge can make national news by attacking the Boy Scouts or declaring the Partial Birth Abortion Act of 2003 unconstitutional, even moderate jurists will be tempted to get creative.
Not to be outdone by the federal bench, state Supreme Courts have taken to the spotlight. The unforgettable decision of the Massachusetts Supreme Court to force their state Legislature to rewrite the law and legalize gay marriage is exhibit number one. Am I the only one left who still believes in three co-equal branches of government and the separation of powers? Judges ordering legislators to pass laws is as blatantly unconstitutional as congress writing court opinions.
Another much-discussed state Supreme Court resides in Alabama, and owes its infamy to former Chief Justice Roy Moore. The Christian conservative insisted on displaying a monument of the Ten Commandments in the rotunda of his courthouse. He ultimately defied a federal judge's order to remove the piece at the cost of his robes. I wholeheartedly agree that the founding fathers would be livid to find their Establishment Clause being used to prohibit the display of the Ten Commandments in public places. However, I seriously doubt that we should incentivize judges, liberal or conservative, to flaunt the law as it stands.
Notably, Roy Moore paid the price for his decision. He chose to ignore a federal judge and lost his job. What penalty has fallen on the members of the Massachusetts Supreme Court for violating the separation of powers and legislating from the bench? What penalty, if any, do Supremes like Ginsburg fear?
Unlike Massachusetts, where Justices are appointed by the governor, many state's hold elections to fill their appellate courts. If elected judges want to act as quasi-legislators, at least voters can treat them as such. Unpopular courts can be fired and replaced. However, federal judges appointed pursuant to Article III of the U.S. Constitution have life tenure during good behavior.
For sometime, congress has ignored the good behavior requirement. Even Supreme Court Justices can be removed from office through "impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." If willfully usurping the power of another branch of government fails to meet the threshold for treason, then it certainly falls under the term of "high Crime," or "Misdemeanor."
Should congress continue to allow unelected judges to rewrite our laws on whim, even moderate and conservative jurists will fall to the twin allures of power and fame. One controversial decision can earn a lifetime of notoriety. From the judge's perspective, there is so much to gain and nothing to lose.
As Americans, we have a choice. We can accept the current model of the rock star, activist judge and trade our Constitution for tickets to see the Supreme Court. Or, we can demand that congress impeach the law breakers.
John T. Plecnik (JTP) is a 21-year-old law student at Duke University and a Featured Columnist at The Conservative Voice, Lincoln Tribune, a weekly newspaper in Lincolnton, NC., and various other online and print publications. He earned a Bachelor of Arts in Accounting with a Minor in Mythology and graduated summa cum laude, sharing the title of Valedictorian, from Belmont Abbey College. Email your comments to John at John.Plecnik@law.duke.edu.