J U S T I C E F O R A L L A R E S T R U C T U R I N G O F A M E R I C A ' S F E D E R A L J U D I C I A L S Y S T E M EMMA NOEL ROBINSON

Transcription

1 JUSTICE FOR ALL A RESTRUCTURING OF AMERICA'S FEDERAL JUDICIAL SYSTEM EMMA NOEL ROBINSON

2 JUSTICE FOR ALL 1 Table of Contents Abstract Justice for All: A Restructuring of America s Federal Judicial System Presentation of the Problem Definition of Terms Political Perspectives History and Structure of the Judicial Branch Biblical Application The Constitution Purpose of the Federal Judiciary Structure of the Federal Judiciary Formation of Judicial Sovereignty McCulloch v. Maryland Lochner v. New York Roe v. Wade Bush v. Gore Obergefell v. Hodges Future Potential The Table-Tennis Mandate: A Policy Proposal Conclusion For the Interested Reader References

3 JUSTICE FOR ALL 2 Abstract Judicial activism on behalf of the Supreme Court infringes upon the rights of the other branches of the federal government, and upon the rights of the states. A clarification of the various terms in question and an analysis of how both activism and originalism manifest themselves will present the potential hindrances that can arise if activism is left uncontrolled. A brief history of the judicial system in America will present the original intent of the Founders in creating a judicial branch. In order to see how the violation of constitutional powers takes place, the following Supreme Court cases will be examined: McCulloch v. Maryland, Lochner v. New York, Roe v. Wade, Bush v. Gore, and Obergefell v. Hodges. Each of these cases presents a different circumstance wherein judicial activism was exercised, redefining the Supreme Court s adopted doctrine with each new ruling. Once the problem of activism is outlined, a policy proposal requiring a restructuring of the federal judicial system and developments in the way the Court can rule on cases will provide a clean outline as to how the constitutional future of America can be preserved. Keywords: judicial activism, constitutional originalist, legislation from the bench, court overreach, political affiliation, judicial review

4 JUSTICE FOR ALL 3 Justice for All: A Restructuring of America s Federal Judicial System As the gavel bangs upon the desk ending a long court session, another decision has been marked in the history books. A new interpretation of constitutional law has been portrayed, casting a shadow on how the federal government composes itself, adjusting and redefining powers with each new ruling. The Supreme Court holds the baton when it comes to the interpretation of how each branch of the federal government is able to conduct itself in relation to the other branches, and additionally defines how these branches interact with the states and the nation as a whole. The powers of the federal judicial branch can be summarized by the Preamble, which states that the government functions in order to establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity 1 These words encompass the nature of the judicial branch of the United States. This branch of government was uniquely created for the purpose providing a system of balance in the federal structure, in order to serve as a proper check on the legislative and executive branches, while simultaneously serving as the final word in controversial court cases regarding citizens and the states. However, as the last few centuries have unfolded, the court system has managed to drift from the constitutional intention it was created under, and has begun to exercise powers that are outside of its realm of constitutional responsibility. Through the political affiliations of its justices, the Supreme Court is neglecting its original purpose to uphold the Constitution by infringing upon the powers of the other federal branches as well as on the rights of the states through the exercise of judicial activism. 1 The Constitution of the United States of America with the Declaration of Independence.

5 JUSTICE FOR ALL 4 Presentation of the Problem The judicial branch of the United States was designed to operate on a delicate balance of power between itself and the executive and legislative branches of government. The federal system was also intentionally created to act as a separate entity from that of the governmental systems of the states. 1 Ultimately, the federal government is sovereign in comparison to the states, but clear lines were established between federal and state boundaries to protect the rights of both the states and the citizens residing in them. 2 As the last two centuries have unfolded, the rulings of the Supreme Court have become increasingly refined and authoritative as the federal government has grown in power; however, this growth of power has led to instances where the federal court system has stepped outside of its appropriate realm of authority. This overreach of the court has led to infringements of power upon the original constitutional boundaries that were drawn for the judicial branch, as well as upon the boundaries that have been given to the federal court system through the formation of additional laws and judiciary acts. The Supreme Court has developed into an entity which is neglecting its original purpose - to uphold the Constitution - by infringing on the powers of the other federal branches and on the rights of the states through the exercise of legislating from the bench. This sense of judicial activism has grown in practice as a result of political affiliation interference on behalf of the Supreme Court justices. Definition of Terms 1 The Constitution of the United States of America with the Declaration of Independence. 2 Johnson, John W. (2001).

6 JUSTICE FOR ALL 5 The principles behind court overreach, legislating from the bench, and judicial review must be clarified and separated from one another in order to more completely understand this topic. First, the idea of court overreach is commonly misconstrued. In the examples to come, court overreach as a term is purely being used in order to represent the occurrence of when the Court manages to reach outside of its own realm of responsibility and power and attempts to instead exercise the powers of other governmental branches. The main case where this is commonly portrayed is through the practice of judicial activism. The action of legislating from the bench is highly controversial. Many scholars argue that legislating from the bench is an absolutely vital practice of the courts, as the current expectation on the federal court system is to interpret and define the laws which have been created and implemented in practical ways and to apply said rules of law to specific cases. However, the doctrinal idea of interpreting the law as well as proving the constitutionality of such laws and then applying said law to cases is actually the practice of judicial review. Judicial review is a vital practice in the current court system. The action of legislating from the bench occurs when the courts attempt to create and implement policy as a result of their ruling in cases; this practice is absolutely unconstitutional. It is this infringement which intrudes on the rights of both the legislative and executive branches, as the courts attempt to define how they think policies would best be implemented in the nation. Legislation from the bench occurs on the federal level (between the Supreme Court and Congress) as well as between the federal judicial branch and the legislative branches of the states. Several landmark cases in Supreme Court history, including McCulloch v. Maryland and Roe v. Wade, have been founded upon rulings which served to be

7 JUSTICE FOR ALL 6 overreaches on behalf of the courts. In order to better understand the controversy grounded behind each of these rulings, a clear understanding of the many ways that the Constitution can be interpreted is required. Political Perspectives When analyzing any case in light of the Constitution, there are two opposing critical approaches that one can take. The first of these, the originalist view, holds true to Thomas Jefferson s line of thinking. A constitutional originalist would state that all hearings of the Supreme Court should not only be read in light of the text of the Constitution itself, but also should give consideration to the framers original intentions in initially creating the document. The primary reason behind the originalist approach is tangibility; there is a basic premise that all citizens should be able to access the Supreme Court. Additionally, each citizen should have the ability to recognize when the court is acting properly, or when it has drifted from its appropriate position. Scholars suggest that one who views the Constitution from an originalist perspective clearly, understands that judges are to interpret the laws, not to impose their preferences or priorities on the people. 1 There is a general assumption among the originalist mentality that Supreme Court judges would in no way legislate from the bench, but instead would apply the Constitution and laws to specific circumstances for consideration. Standing in opposition to the constitutional originalist mentality is the activist viewpoint. A judicial activist strongly believes that, the Constitution [is] a document of broad principles and concepts, one that empowers [the justices] to substitute their 1 Roosevelt, Kermit III. (2006).

8 JUSTICE FOR ALL 7 personal beliefs, values, and policies for those enumerated in the Constitution. 1 Alexander Hamilton was a firm judicial activist, believing that limiting and defining the power of the court would hinder the growth and adaptability of the nation. Without the ability to grow and adapt with the current times, there is absolutely no way that America would be able to survive over time. However, the actions of activists are questioned, as they tend to view the position of justices as to make rather than interpret the law. 2 When examining both of these viewpoints critically, one can easily understand where each position is founded logically, however, each standing has its own particular fault. In considering the originalist view, one must realize that it fails to recognize the existence of a court doctrine. Each individual ruling that is made by the Supreme Court contributes to the current court doctrine: the record of rulings and adjustments to laws that have occurred as a result of the case outcomes of the past few centuries. As the court doctrine has evolved, the political atmosphere of the nation has shifted as well, which can be seen through an examination of landmark cases that have taken place over time. On the contrary, the activist view adopts inappropriate powers which have not been granted to the judicial branch. Supreme Court Justice Thurgood Marshall stated it well when he boldly declared that the position of a judge is to do what you think is right and let the law catch up. 3 With this mentality, it is extremely easy to justify a ruling that manages to create legislation for the federal or state governments to follow, eliminating the need for a legislative branch. Additionally, viewing the world through the activist lense allows justices to expand their powers to operate as they see fit. 1 Levin, Mark. (2005). 2 Levin, Mark. (2005). 3 Levin, Mark. (2005).

9 JUSTICE FOR ALL 8 Many scholars argue over the possibility of whether neither the originalist nor the activist perspectives truly exist. 1 Kermit Roosevelt III presents the thought that there is no truly accurate or correct way to interpret the Constitution. In the case that no correct interpretation exists, there would be no argument between activists and originalists. In counter to this, perhaps the correct option is more simple and logical: both the originalist and activist views exist, but there is a delicate balance between the two that must be reached in order to 1) properly recognize the political polarization of the justices and adapt to court doctrine as it develops, and 2) to respectfully and adequately represent the intention of the founders of the Constitution itself. History and Structure of the Judicial Branch In order to effectively analyze whether the actions being taken by the justices are acceptable, a clear and accurate history of how the judicial branch came to be structured as it is today is required. The structure of the American judicial branch is not unique; in fact, its roots trace all the way back to ancient times with the original founding of a court system. These roots can then be traced through the development of America, and lead directly to the processes through which the judicial branch operates today. The political bends of the court system in America can then be traced through landmark cases and eras, allowing the struggle between originalism and activism to become glaringly apparent. Biblical Application The historical structure of the court system long precedes the creation of America. The current governmental system in the United States can structurally be traced and related to 1 Roosevelt, Kermit III. (2006).

10 JUSTICE FOR ALL 9 the roots of the government of the Israelites. Looking from Old Testament times forward, it is easy to draw connections and see how the American court system of modern times has stemmed directly from the Biblical foundational court system of the past. Biblically speaking, it is in God s nature to act as a God of order, structure, and justice. It is important to note that the character of the Lord leads directly into the plans He has for His people. The world which He created is a fallen world that is filled with injustice. The God of the Israelites designed His people to live in community with one another. As Genesis 2:18 states, The Lord God said, It is not good for the man to be alone. 1 However, because the world is fallen to sin, biblical principles suggest that man must be supported through order and structure to be able to effectively function in community with other men. The entirety of the Old Testament is a compilation of all 613 laws 2 that God instituted in order to create a structure for His people as an example for how communities need to be controlled and conducted in order to best manage the fallen world. Therefore, in Exodus, Moses was established by God to be the first Judge over the Israelite community. Moses was reprimanded for performing this function alone, and therefore additional justices were implemented to work alongside him, as seen in Exodus 17:18-23: What you are doing is not good This work is too heavy for you; you cannot handle it alone Select capable men from all people Have them serve as judges for the people at all times, but have them bring every difficult case to you you do this and 1 Life Application Study Bible: New International Version. 2 Hecht, Mendy. (2016).

11 JUSTICE FOR ALL 10 God so commands, you will be able to stand the strain. 1 Later, the structure of the court system was again addressed, as Deuteronomy 16:18 says to appoint judges and officials for each of your tribes in every town the Lord your God is giving you, and they shall judge the people fairly. 2 The court system, as established by God, was created to hold two responsibilities, which are still the responsibilities of the American courts today; 1) to administer justice for the people by doing what is best for the people, and 2) to establish boundaries and form a structure for the nation as a whole. This very much correlates to the existence of the Supreme Court bench of today. Tracing the idea that the plans of God follow His overall character, and knowing that God is characterized by structure, order, and justice, it is clear that government was established to function as a servant of God. Through the establishment of government, God s justice is served to the world. Government is God s way of wielding His sword against man s sinful nature, and it is a vital tool that allows God to still be moving through the world today. Due to the nature of accountability that the government holds to the people it serves, the nation it belongs to, and the God of Israel whom it ultimately exists for, the establishment of government has a freedom and an obligation to uphold what is best in each of these realms. The Constitution When America was established, the Founding Fathers created the Constitution to act as a lighthouse, guiding the development of the newly birthed nation. This has since been the foundation of all legal and governing decisions, paving the development of America 1 Life Application Study Bible: New International Version. 2 Life Application Study Bible: New International Version.

12 JUSTICE FOR ALL 11 over the last two centuries. The Constitution clearly divides the nation s government into three separate branches, which are designed to function in their own unique way and additionally serve as checks on the powers of the other two federal entities. Article III of the United States Constitution specifically addresses the judicial sector of the government, outlining the branch s powers, and defining limitations the judiciary is contained by as well. 1 Many of these powers have been further defined and modified by the other two governmental branches, and will be examined later. The Constitution has established checks against the judicial branch to counter the fairly broad span of powers that this document granted; these checks directly correlate with how the judicial branch has expanded and developed since its original founding over two hundred years ago. 2 Checks on the Judiciary Despite its clear foundational importance to the existence and judiciary function of the nation, the Constitution provides few details regarding the federal judicial court system as a whole; Article III only addresses and establishes the Supreme Court itself. This is to serve as a power-check against the judicial branch, as a reminder that the federal court system is given not to the judiciary to control, but in fact to Congress. 3 Congress therefore holds the power to create all district and appellate courts that function under the Supreme Court, and determines how these courts are to act. 4 It was Congress which defined that district courts hold original jurisdiction over a majority of cases, while the appellate courts 1 Roosevelt III, Kermit. (2006). 2 Starr, Kenneth W. (2002). 3 The Constitution of the United States of America with the Declaration of Independence. 4 Bork, Robert H. (1990).

13 JUSTICE FOR ALL 12 hold appellate jurisdiction, except in the express cases given in Article III where the Supreme Court holds original jurisdiction. 1 Article II, Section 2 of the Constitution grants the president the power to nominate and appoint all justices of the Supreme Court. However, in order to avoid an ineffective or overly biased bench, Congress holds the power to eliminate any appointments which it finds to be inferior. Article VI, Section 1 states that Congress has the right to proscribe the manner in which all court proceedings occur, ensuring that they are in line with the Full Faith and Credit clause which gives Congress the power to check that judicial proceedings are fair and properly conducted. 2 The justices themselves were also given specific instructions by the Constitution through Article VI. Pursuant of the Supremacy Clause, the Supreme Court was developed as an entity which is governed solely by the Constitution, not by any man or government entity. Additionally, the Supreme Court holds the sole power to interpret the Constitution and apply it, as previously discussed. Combined, these powers could prove to be a dangerous combination for one government branch to yield against the others. In order to provide an accurate check here, Congress was given the power in Article V to amend the Constitution if necessary, making sure that the judicial branch was not given the power to edit its own powers, or define them to cover more territory than they actually do. Constitutional Amendments and Additional Powers Following all of the regulations that were placed in front of them by the original text of the Constitution, the federal government quickly realized that additional powers needed 1 Article III, The Constitution of the United States of America with the Declaration of Independence. 2 The Constitution of the United States of America with the Declaration of Independence.

14 JUSTICE FOR ALL 13 to be defined. The Ninth and Tenth Amendments were passed in order to provide adequate support both for the states and individual citizens who were residing in the nation. The Ninth Amendment specifically addresses the key principle that simply because defined rights are not outlined by the Constitution, this does not mean that these rights inherently do not exist. The Tenth Amendment guarantees that any right which is not explicitly given to the federal government through the Constitution belongs to either the states or the people. 1 The other central amendment which directly affected the judiciary was the Eleventh Amendment. The Eleventh Amendment was passed following the ruling in Chisholm v. Georgia, clarifying that federal courts could correctly rule on cases occurring between a state and citizens belonging to another state. This amendment was not written with regard to citizens bringing cases against the state in which they resided, but these cases were deemed to fall under the principle of sovereign immunity, and thus were not to be brought forward. 2 Purpose of the Federal Judiciary The federal judicial branch was created in order to act as a check against the other two branches of government. Additionally, the branch was necessary to effectively govern and make decisions, and to rule justly on behalf of the people with regards to controversial issues between citizens, states, and the nation as an entity, and to interpret laws in order to maintain and manage the order of the nation. As mentioned previously, the purpose of the federal judiciary was not to interpret laws or judge the constitutionality of rulings; this 1 The Constitution of the United States of America with the Declaration of Independence. 2 White, G. Edward. (1991).

15 JUSTICE FOR ALL 14 practice was adopted by the court as a power fairly early in the it s existence. According to Hamilton, the judiciary did not represent a threat as long as it remain[ed] truly distinct from both the legislature and the Executive. For I agree, he continued, that there is no liberty, if the power of judging be not separated from the legislative and executive powers. 1 The founders of the Constitution debated whether or not to give the judicial branch the power of judicial review. However, after considering the amount of power that would be given to this singular entity through such a decision, they opted to leave that doctrine out. There was already an extremely large amount of power given to the federal judicial system through the Constitution, and since no power had the authority to rule over the courts, the founders saw reason to approach additional grants of power with caution. 1 Robert Yates, an Anti-federalist and delegate to the Constitutional Convention, warned that the Supreme Court justices would not be confined by established rules, but instead would have the power to create the interpretation of the Constitution in the nation. He feared that the justices would have the ability to shape the federal government however they desired if no court of appeal was placed above the Supreme Court itself, as no person would be able to correct their errors. 1 Additionally, Jefferson cautioned that if the Legislature and Executive branches were not able to check the Supreme Court, the result would be disastrous to the effectiveness of the judicial branch in ruling justly and unbiasedly on cases. Structure of the Federal Judiciary 1 Levin, Mark. (2005).

16 JUSTICE FOR ALL 15 Originally, the federal judicial branch was created just as the Constitution described it: a Supreme Court to oversee judicial proceedings in the nation, and any courts which Congress decided to create would then fall under it. This remained the federal judicial structure until 1789, when Congress passed the first federal Judiciary Act, creating district and appellate courts under the purview of the Supreme Court. Over the years, several changes have been proposed, further defining and ratifying the federal judicial structure culminating in that which we see today. The Judiciary Act of 1789 There were initially many debates as to what Article I, section 8 of the Constitution actually intended when it was written. Was the Constitution itself supposed to govern the court system because of this portion of the article, or was Congress actually given the expressed power to establish the remainder of the court system? The Judiciary Act of 1789 defined it as the latter, establishing the three-tier court system that we have today. 1 Brian Landberg summarized that, the act established three tiers of federal courts: the Supreme Court, district courts, and circuit courts. 2 The Supreme Court was unable to overturn any facts found by juries, and all trial jurisdiction over suits arising under the Constitution, federal laws, and treaties, 2 were given directly to state courts. The Judiciary Act of 1789 was intended to be a temporary placeholder for whatever establishment of structure would follow closely behind it. As it was being drafted, the Act s creators, by essentially all accounts, viewed it as a work in progress. Although indeed 1 Marcus, M. (1992). 2 Landsberg, Brian. (2004).

17 JUSTICE FOR ALL 16 amended throughout the years, the basic outline it provided has remained largely intact. 1 However, the system which was put in place proved so effective that it has mostly remained, and only minor structural details have evolved over the last two centuries. The Judiciary Act divided the nation into districts and defined the Supreme Court as a bench consisting of one chief justice and five associate judges. The Act also determined that the rulings of the Supreme Court were to be final and decided. In addition, it left vested in the Supreme Court the ultimate power to decide disputes between states, and also provided for mandatory review by the Supreme Court on the final judgments given by the highest court of any state for any cases where the question regarded the validity of treaties or statutes. Overall, this act is, without question, one of the most important laws ever enacted by the national legislature. 2 Today s Federal Court Structure The construction of today s federal court system is fairly straight forward, and very similar to the structure that was initially created in the late 18 th century. Today there are three tiers constituting the federal court system itself. 3 The top tier, naturally, belongs to the Supreme Court. The second tier is that of the U.S. Courts of Appeals, and the third tier consists of the U.S. District Courts. The job of the district courts is to take the law and apply it to specific cases correctly. The courts of appeal serve as a check on the district courts, and function in order to be sure that the law is properly applied to the case at hand. Finally, the Supreme Court serves as a check over both the appellate and district levels, and can 1 Judiciary Act of (2016). 2 Clinton, R. L. (1992). 3 Administrative Office of the U.S. Courts on behalf of the Federal Judiciary (2016).

18 JUSTICE FOR ALL 17 overturn their rulings in the occurrence that both courts manage to apply the law incorrectly. With a solid foundation now in the original intention of the court system and a grasp on how it has grown over the years, it has become clear as to where the roles of the judicial branch of today have begun to blur the lines originally drawn around them. Formation of Judicial Sovereignty As the Supreme Court came into existence and has evolved over the last two centuries, it has become apparent that the political affiliations of the justices have grown in relevance with regards to how the Court operates. Thomas Jefferson and Alexander Hamilton disagreed on how the Court should conduct itself, and as time has unfolded, certain cases have caused the doctrine of the Court to drastically shift from one extreme to the next. Through the ruling of Marbury v. Madison, the Supreme Court managed to give itself the power of judicial review, despite the earlier attempts of the founding fathers to keep this power away from the judicial branch. Since the establishment of judicial review in 1803, the court has been able to rule on the constitutionality of cases. Kermit Hall, a noted legal historian, stated, In other words, when the Constitution--the nation's highest law-- conflicts with an act of the legislature, that act is invalid. 1 In 1816, Martin v. Hunter s Lessee determined just how far the power of the Supreme Court was able to reach into the realm of the state court system. 2 Through this ruling, the Court declared that the federal court system was sovereign over the state courts, and resulted in the overturning of Section 25 of the Judiciary Act of 1789, which gave the United States Supreme Court the power to review state rulings on behalf of constitutionality. This 1 Marbury v. Madison. (2016). 2 Hall, Kermit. (1999).

19 JUSTICE FOR ALL 18 led directly into an increase in the question of the relationship between the federal government and the states, and resulted in the developed the power of the Supreme Court. Following this case, McCulloch v. Maryland furthered the federal court s power, and defined much more clearly how far the two spectrums could interact. McCulloch v. Maryland Through the hearing of McCulloch v. Maryland, the relationship between the federal government and the state governments were redefined forever. This was the first major case to call upon state versus federal jurisdiction, and the ruling of the Supreme Court to implement a stronger federal government has since created the ability for court overreach to exist. Kermit Hall presented that, it settled the meaning of the Necessary and Proper Clause of the United States Constitution and determined the distribution of powers between the federal government and the states. 1 While this case did not specifically exercise an overreach of the federal judiciary s power, it is the grounding point as to why such overreach and the problem of judicial legislation exists. McCulloch v. Maryland directly questioned the political opinions of Hamilton against those of Jefferson. In debating the Necessary and Proper Clause of the Constitution, Jefferson, in his originalist perspective, believed that the federal government was only given the implied powers that were absolutely required for the performance of its enumerated powers. Alexander Hamilton on the other hand believed that the clause held a looser and much more activist approach. He feared that narrowing the clause would 1 Hall, Kermit. (1999).

20 JUSTICE FOR ALL 19 deprive it of its real and potential effect. The Marshall court ruled in favor of Hamilton, defining the tone of the federal government for generations to come. 1 The Court ruled that the states did not have the authority to place taxes on federal-run programs and institutions, therefore defining the sovereignty and authority of the federal government over that of the states. According to Johnson, The advocates of state sovereignty correctly perceived that Marshall s expansive reading of the necessary-andproper clause could legitimize extraordinary assertions of federal power in the future. 2 This was the singular landmark decision surrounding how the Supreme Court would approach any case which applied to any federal power that is not specifically mentioned in the Constitution. In a nutshell, this case is commonly known as the opening of Pandora s Box. Lochner v. New York Moving forward from McCulloch v Maryland, the abilities of the court continued to develop and grow. In 1905, during the time of Chief Justice Fuller s Court, the ability for the federal government to create legislation for the state governments was called into question. The basics of Lochner v. New York are fairly straight-forward. The state of New York passed a statute stating that bakers could not work more than 60 hours each week. The Bakers Union fought for their rights granted by the Contract Clause and the Fourteenth Amendment. 3 1 Schwartz, Bernard. (1993). 2 Johnson, John W. (2001). 3 The Constitution of the United States of America with the Declaration of Independence.

21 JUSTICE FOR ALL 20 The Supreme Court, gave little deference to the New York legislature s position that the labor law bore a direct relation to the welfare of the bakers, 1 and therefore upheld the right of the bakers to work as many hours as they would like under the freedom granted to them by the contract clause. As time passed since the Court s ruling on Lochner, this evolved into a case regarding the Court providing for the employer over the welfare of the employee. As the case of Lochner played out, the Court, no longer considered the proper business of government to tell business what to do unless it involved a state s narrowly defined police powers to assure its citizens safety and health. 2 What the Court failed to recognize with the ruling of this case was that the state of New York was exercising this exact authority, by determining the hours which its citizens were able to work, and upholding the health and safety of its citizens. Furthermore, Justice Harlan pointed out in his dissenting opinion that when the constitutionality of a statute of a state s legislature is called into question, there should be no Court interference in that statute, or in rewriting that statute unless it truly is found to be unconstitutional. 3 This was debated on both sides of the courtroom, as some more activist judges saw the benefit for the Court to have a say in state legislatures, and more originalist minded justices preferred to remain separate. Ultimately, the ruling of the Supreme Court overstepped its bounds by overturning a state statute that did not violate 1 Avery, Michael and Danielle McLaughlin. (2013). 2 Solomon, Burt. (2009). 3 Johnson, John W. (2001).

22 JUSTICE FOR ALL 21 any constitutional boundaries, and was fully within the right of the states to create, as granted by the Tenth Amendment of the Constitution. 1 Additional Controversies Chief Justice Fuller s court ruled in several additional cases following Lochner v. New York that would have been controversial, had the court doctrine not been completely shifted by its decision. One of the largest controversies determined by Fuller s court in addition to Lochner was Plessy v. Ferguson, which resulted in the further segregation of white and colored people. Up to this point, the Supreme Court had attempted to avoid cases regarding segregation, as the ruling of Dred Scott v. Sandford was so politically divisive. Justice Brown represented the opinion of the Court clearly by stating, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable. 2 This ruling established the principle of separate but equal, and upheld segregation for several decades to come. When the Warren Court ruled in 1955 on Brown v. Board of Education, they reversed the ruling of Plessy, which led to a question of where activism had been exercised in these two decisions. The case of Brown, had been seen as activism in the day it occurred, but today we view Plessy v. Ferguson to be the real activist issue, and that Brown overturned this ruling. 1 With the overturn of Plessy, the Court continued to spread in power and expand into additional policy areas that had previously been avoided, allowing politically charged subjects to be introduced and readily examined in the Supreme Court s docket. Roe v. Wade 1 Hall, Kermit. (2005). 2 Levin, Mark. (2005).

23 JUSTICE FOR ALL 22 Following the Warren Court, Chief Justice Burger came into position. The Burger Court is known for many challenging decisions, including Bowers v. Hardwick and Thornburgh v. American College of Obstetricians and Gynecologists. However, one of the best remembered cases determined by the Burger Court was also one of the most politically charged decisions at this point in time: Roe v. Wade. The hearing of Roe v. Wade (1973) by the Supreme Court was a monumental occurrence. Prior to this case, the Supreme Court had avoided touching the issue of abortion, as the sheer number of cases presented on the issue were staggering, and the ruling on the case would be extremely politically charged. Up to this point, abortion regulations had been left to the state s discretion. However, as additional numbers of cases were rising, it became clear that the federal court system needed to speak up and define this issue. While the ruling in Roe v. Wade was a huge turning point in abortion policy for the nation, the specifics given by the Court addressing this issue were not within the realm of the judiciary to grant, therefore this case turned out to be another classic example of the Supreme Court legislating from the bench. The Court ruled that women had the right to abort their pregnancies through their personal right to privacy, 1 however this portion of the ruling was within the realm of the Court to prescribe. The remainder of the ruling however defines the various levels of state interest for the varying trimesters of a pregnancy, which should be left up to the states to determine. Through this legislation of policy from the Supreme Court bench, the Court stepped over its realm of responsibility yet again, and exercised legislation. 1 The Constitution of the United States of America with the Declaration of Independence.

24 JUSTICE FOR ALL 23 Justice Rehnquist and Justice White both wrote dissenting opinions explaining that the Court s balancing of competing interests and careful laying out of what doctors could do in various circumstances resembled a statute. 1 Justice Rehnquist protested further, explaining how judicial legislation was a violation upon state interests. 2 The political divisiveness regarding this case added an extra factor to question the motives of the justices. Chief Justice Burger s bench was primarily conservative, and so the support of legal abortions and women s rights adds an additional layer of controversy to this specific ruling. The ruling of Roe v. Wade was so divisive that, few decisions in the modern history of the Court rank higher than Roe on the controversy meter. 3 It is extremely controversial to have the establishment of abortion as a fundamental right of women; 4 however, it remains the specificity of the ruling made by the Court which stands out even further as a case of controversy. The decision for the Court to prescribe specific legislation was so far outside the bounds of the its responsibilities that justices themselves were calling each other out for it. Bush v. Gore The Burger Court then gave way to the Rehnquist Court, which is debatably the most activist courts in Supreme Court history. 5 The case of Bush v. Gore brought a unique amount of political stigma with it, as this was the first time that the American public was clearly able to recognize the political affiliations of the justices in their ruling. The Hall, Kermit. (1999). 2 Johnson, John W. (2001). 3 Starr, Kenneth W. (2002). 4 Powe Jr, Lucas. (2009). 5 Levin, Mark (2005).

25 JUSTICE FOR ALL 24 election brought with it a major case of controversy to the bench of the Supreme Court. While many assumed that this case was too political for the Supreme Court s docket to accept, the Court agreed to review the case on the basis of the Equal Protection Clause of the Constitution (Article II, Section 1, Clause 2) 1. The construction of the case which the Court reviewed, defined some equal protection clause rights connected with voting, 2 but overall the bench was divided as to whether the case was able to be heard at all. Bush v. Gore ended with a majority decision founded in the Equal Protection Clause, stating that no constitutional recounts were able to occur. This case was largely feared once it was ruled upon, as many were concerned as to how future elections would play out, if voting methods and practices could suddenly be called into question. 3 The outcome of Bush v. Gore was extremely controversial on the political spectrum, as the five justices upholding the case were conservative, and the outcome of the case swung the vote in favor of the conservative candidate. However, the case was additionally controversial among the bench because the Court did not agree as to whether the Court should have been hearing this case to begin with, due to of the principles of federalism. Given the facts, the Supreme Court was wrong to hear this case in the first place. A matter technically relating to the legislative branch (Article I, Section 4) 4, elections are not a place where the Supreme Court has the authority to make a ruling. Justices Breyer and Souter pointed out that if any federal branch were going to step in and offer an opinion, it 1 The Constitution of the United States of America with the Declaration of Independence. 2 Cross, Frank. (2007). 3 Levin, Mark. (2005). 4 The Constitution of the United States of America with the Declaration of Independence.

26 JUSTICE FOR ALL 25 should have been Congress. 1 Furthermore, the question at hand was not regarding federal legislation at all, but instead was interpreting the intention of the laws of a state, which was created completely separate from any federal election law. Therefore, the dissenting opinions, maintained that the Court had no place interfering with the state supreme court s interpretation of state law. 2 Obergefell v. Hodges Following Chief Justice Rehnquist was the establishment of the Roberts Court, which is the present court of today. The final case up for examination was decided much more recently than those previous, and has proven to be extremely divisive. Obergefell v. Hodges (2015) was determined by the Roberts court, and resulted in a ruling even more controversial than even Roe v. Wade proved to be 50 years ago. Court overreach was magnified to a whole new level through the hearing of this case, and as a result the nation will never be the same. The facts of Obergefell v. Hodges are well known. Several same-sex couples challenged the laws of several states which refused to recognize same-sex marriages that occurred in jurisdictions where these unions were legal. The argument is simple: if a couple is married in one state, their marriage should be recognized in all states, regardless of the laws of each individual state on the topic of same-sex marriage. Furthermore, the case also included a debate as to whether all states should legalize same-sex marriage, as the denial of these unions was a constitutional violation upon the Fourteenth Amendment. 1 Hall, Kermit. (1999). 2 Johnson, John W. (2001).

27 JUSTICE FOR ALL 26 In a 5-4 decision, the split bench determined that states needed to perform marriages for couples of the same-sex, and also that these couples deserved to have their marriages recognized in all states as a proper union. While this ruling was divisive on behalf of the Court, and varying opinions from all political directions weighed heavily upon the decision that was made, the decision in itself was not the source of court overreach. Where judicial overreach clearly existed lies in the initial questions facing the Court. The questions at hand were 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex, 1 and 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state? 1 The first question should never have been heard by the Court to begin with. This question calls legislation and policies directly into question, as marriage licenses are civil contracts controlled and managed by the legislature of the state. By deciding to hear this case, the Supreme Court overreached its spectrum of power and directly disregarded the power of the states to create their own legislation, as granted by the Tenth Amendment of the Constitution. By choosing to explicitly rule on a case out of its constitutional and congressional bounds, the Court has stepped into a whole new realm of legislation from the bench and judicial overreach, which can lead to drastic shifts in the balance of federal power as the next few decades progress. It is due to the increasing activism in the Court, and political charges behind the cases at hand, that the justices are no longer seeing a need to filter what they want to do with what they are called to do. The power balance between the states and 1 Obergefell v. Hodges. (2016).

28 JUSTICE FOR ALL 27 the federal government have become exceedingly blurred, and will soon need to be completely redefined, as current constitutional principles will become obsolete. 1 Future Potential Over the last two centuries, court overreach has occurred on countless occasions through hundreds cases aside from the few examined here. These cases are merely an analysis of landmark decisions made by the Supreme Court which either 1) should not have been heard by the Supreme Court in the first place, or 2) resulted in rulings which completely overstepped the boundaries set for the Court based off of the separation of powers and all of the specific authorities which the federal court system possesses. Much of the power that the Supreme Court currently possesses over the other two branches, as well as over the states, was not initially put in place by the Constitution, but instead has been adopted by the justices through their monumental rulings. The political affiliations of the Supreme Court justices play a vital role of influence upon the decisions that the court will come to. Therefore, it is vitally important that, as each new justice is nominated, careful consideration is given as to how their political leanings and biases will affect the pendulum swing of the court bench as a whole. This is why the presidential nomination for the Supreme Court is such a vital decision; once appointed, a justice holds their seat for life. There is no superior check upon the Supreme Court; they are the ultimate voice in the political spectrum, and their biases and decisions will govern and shape the future of America. As a result, it is vitally important that the 1 The Constitution of the United States of America with the Declaration of Independence.

29 JUSTICE FOR ALL 28 justices abide by their original purpose to uphold the Constitution, and are cautious in their exercise of judicial activism. If left unaddressed, the problem of activism will continue to play out in the future, and will lead to a continued overreach of the federal judiciary into the realms of state and federal governmental power. This potentially will eliminate the powers held by the states, as well as the other branches of government. It is clear through an examination of this issue that a new proposal must be made to attempt to limit the overreach of the judicial branch, and ultimately prevent it altogether. The Table-Tennis Mandate: A Policy Proposal As seen previously, the Founders of the Constitution did not provide much guidance regarding the establishment or definition of the judicial branch. Two logical conclusions may be drawn to explain why the branch was left with so broad a description: 1) the Founding fathers recognized the magnitude of the judicial branch s significance to the operation of the nation, and wanted to allow for it to be able to grow and evolve alongside the ever-changing nation, or 2) the judicial branch is such a complex and divisive entity, that the the Founding Fathers were unsure of what would actually work. By giving Congress the ability to create the federal judicial court system, this provided an adequate check upon the original powers of the judiciary. However, as the Supreme Court has determined controversial rulings over the years, it has managed to provide itself with a number of abilities that were not initially granted to it. Through the implementation of judicial review and the expansion of Court doctrine as seen previously, the power of the judicial branch has exceeded the influence of the check-and-balance system that was originally created to counter the Court, just as Thomas Jefferson feared. In

30 JUSTICE FOR ALL 29 order to bring reform to the balance of powers in the federal system and establish a more efficient judiciary, a new change is clearly needed. Through an in-depth examination of potential options that could be implemented to limit the power of the Supreme Court, it is clear that no proposal will completely resolve the issue. It is also apparent that no proposal will be without its faults. Regardless of these complexities, the fact of the matter remains that judicial activism needs to be narrowed and more managed on behalf of the Court. Therefore, some aspect of reform needs to be instituted in order to allow the judicial branch to evolve in line with the nation s growth. After examining many options, perhaps one of best regards creating a new mandate defining how Supreme Court rulings are decided. Currently, the Supreme Court rules on a decision with a simple majority approach: the ruling must be 5-4 for a decision to be made. What if the Supreme Court instead required a two-thirds majority, similar to the legislative federal branch? This would require at least a 6-3 vote in order for a decision to be determined. The Supreme Court bench is usually well balanced between political parties, with either democrats or republicans dominating the by one seat. In the case that a two-thirds majority was required, this would mandate that at least one person of the minority party would have to also rule in favor of the decision. While justices are supposed to act as impartial parties, each holds their own political affiliation that will come into play in extremely controversial and politically-charged cases. One could propose a potential problem with this solution, recognizing that the 5-4 ruling of today would be extremely common, especially during the early times of implementing the new policy, and questioning how these cases would then be determined. Regardless of whether the 5-4 cases are left as hung jury rulings, or if they are left on the